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New FISA Bill Dramatic Departure From Old Law

MELISSA BLOCK, Host:

Welcome to the program.

SUZANNE SPAULDING: Thank you, Melissa. Glad to be here.

BLOCK: Let's compare this new bill with the 1978 Foreign Intelligence Surveillance Act that it's designed to overhaul. Would you say that it weakens the old law?

SPAULDING: Well, it adds to the old law and it's a dramatic departure from the legal framework that the old law set up. The old law was focused on individualized orders targeting individuals who are inside the United States. And this provides a broad authority to target groups of people, categories of individuals, overseas.

BLOCK: Let's break it down a little bit. If the government now wants to wiretap a foreign target or group that's overseas, what's different under this new bill?

BLOCK: No one who hasn't been briefed on the program really understands exactly what that means when we talk about groups, and that's part of the problem with this legislation.

BLOCK: Now, we've been talking about foreign groups. What if the government wants to eavesdrop on an American target, what are the rules under this new bill?

SPAULDING: The rules will be exactly the same as they are today under FISA. If the U.S. government wants to specifically target a known U.S. person, they have to use the traditional FISA process to do that.

BLOCK: No change at all.

SPAULDING: No. Now, what concerns some critics of this bill is that the government could pick up an awful lot of communications of people inside the United States, including Americans, by virtue of targeting people overseas. And if those people overseas call Americans or e-mail, those communications can be intercepted by the government.

BLOCK: That raises a really interesting point, because so much has changed technologically in the last 30 years since the original FISA bill. That must dramatically alter the impact of what these rules are.

SPAULDING: Well, that's exactly right, Melissa, and it's a good point because a lot has been made about the changes in technology requiring an update of FISA to give the government more flexibility. But what folks have paid less attention to is, as you point out, that the changes in technology also mean that far more Americans are communicating internationally, and the impact therefore is much greater.

BLOCK: In terms of the immunity provisions for telecom companies that have becomes so controversial, protecting them from lawsuits, would you say that this bill represents a pure win for the Bush administration on those issues?

SPAULDING: Probably. This certainly is the provision they were looking for, clearly. It very likely will mean the dismissal of the lawsuits. But there is a thin reed upon which plaintiffs in these lawsuits might be - might look for some hope. And that is that under this bill - unlike the bill that passed the Senate earlier, under this bill, the plaintiffs are able to participate in the proceedings and the judge has to go through a process before dismissing these lawsuits. They are not all dismissed upon enactment of this legislation.

BLOCK: What is known about the role of the telecom companies? Which companies shared information with the administration, what kind of information they shared, and how much is just unknown?

SPAULDING: All of it is unknown. There has been a lot of speculation and there were public reports that at least one phone company, Quest, refused to assist the government or participate in some activities that it was asked to participate in by the government. But beyond that, the rest of it has all been kept secret.

BLOCK: And there's supposed to be some investigation going forward.

SPAULDING: It's one of the most important, I think, provisions in this bill, and that is a comprehensive review by the inspector generals of the various national security entities that were involved in the program. They are directed by this legislation to do a comprehensive review of this program from its inception all the way through to the time when it was presented to the FISA court.

BLOCK: But you have heard concerns from certainly Democrats in the Senate, saying this is backwards, you're granting immunity first and investigating afterward.

SPAULDING: There is an awful lot we don't know about this program and, hopefully, we'll know a lot more next year.

BLOCK: Suzanne Spaulding, thanks for coming in.

SPAULDING: Thank you.

BLOCK: Suzanne Spaulding is a national security expert. She's now in private law practice here in Washington, D.C. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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