FROM CONGRESSMAN ADAM SMITH

November 3, 2006

Thank you for contacting me in regard to legislation concerning
the ability of the U.S. government to conduct electronic
surveillance on U.S. soil.  I appreciate hearing from you about this
important issue.  

I agree with you that any surveillance program to monitor terrorist
activity must be constitutionally sound.  While we must be able to
pursue terrorists aggressively at home and abroad, we must also
preserve our ability to motivate other countries to fight with us
and, at the same time, stand firm in the defense of our nation's
ideals.

As you may know, President Bush authorized the NSA to conduct
domestic wiretaps on U.S. citizens shortly after September 11,
2001.  The first NSA program that was revealed last December
authorized the agency to conduct wiretaps on international calls
and e-mails to and from the U.S.  The second NSA program that
came to light in May 2006 was authorized by the President to
collect domestic calling information from three major
telecommunications companies.  This program gathers extensive
calling records to analyze calling patterns for millions of
Americans, including those not suspected of violating any law. 
Like many Americans, I am concerned about the legality of
President Bush's authorization of domestic surveillance.

As a Member of Congress, I have not seen clear evidence that the
current surveillance rules under the Foreign Intelligence
Surveillance Act (FISA) are unworkable or an impediment to an
active terrorist surveillance program.  The current system allows
for quick and flexible action as it includes emergency provisions to
obtain a warrant after action has been taken. Under FISA,
surveillance requires a warrant from a special FISA court or the
authorization of the Attorney General which can then be reported
to the court up to 72 hours after action has been taken. 

As you may know, Congresswoman Heather Wilson (R-NM)
introduced H.R. 5825 to alter the President's legal authorities for
domestic surveillance in order to allow the President's NSA
program to move forward.

You may be pleased to know that I opposed H.R 5825 when it
came to a vote in the House on September 28, 2006. 
Unfortunately, this bill passed by a vote of 232-191. 
While I am open to proposals that would make changes to FISA
should they be necessary to improve intelligence gathering on
terrorist activity, the changes included in Congresswoman
Wilson's (R-NM) legislation go too far.  It seems that this extreme
bill was put forward to achieve political leverage rather than
improve our ability to monitor terrorist activity.  Additionally,
should H.R. 5825 pass into law, I am concerned that it would be
overturned in court. 

H.R. 5825 removes basic judicial checks on the President's
surveillance power and allows the President to spy on Americans
without a warrant for an unlimited period of time.  The bill allows
the President to authorize electronic surveillance of
communications without obtaining a warrant from the FISA court
for periods of up to 90 days after an armed or terrorist attack
against the United States and in the case of an imminent threat of
attack.  Yet, these 90 day periods could be renewed unilaterally by
the President for an unlimited period of time.  The bill also
removes requirements protecting the interception of
communications by American citizens. 

It is my hope in the future that Congress will come to a more
reasonable compromise to conduct surveillance that maintains
judicial checks and protects American citizens from privacy
violations.  I believe it is possible to conduct rigorous surveillance
of terrorists in a way that does not put the privacy of our citizens at
risk.  

Again, thank you for contacting me about this important issue. 
Please feel free to contact me again should you have any additional
questions, comments, or concerns.

Sincerely,

Adam Smith
Member of Congress