Tags: Surveillance | Bills: | Back | the | Bad | Old | Days

Surveillance Bills: Back to the Bad Old Days

Friday, 22 September 2006 12:00 AM

So you call yourself conservative? Well, so do we. We believe in national security, independent courts that respect the law, legislative oversight and individual responsibility. And we know that when these basic tenets of true conservatism are carried out in the highest levels of government, this nation thrives.

The Bush administration, though, is slowly trying to change what it means to be a conservative. Under their new definition, conservatism means abandoning checks and balances, throwing the Constitution out the window and never questioning the president's authority. President Bush is playing politics within his own party and too many members of Congress are towing the administration line for fear of being labeled "disloyal." It is our opinion, that the president is the one betraying his own self-proclaimed conservative values.

And now, with the memories of the September 11, 2001 attacks fresh on Americans minds, Congress is under extreme pressure from the administration to rapidly pass legislation legalizing the warrantless spying programs. Bush is insisting that Congress legislate even though he has tacitly conceded the existence of secret spying programs not yet leaked to the press whose general contours have been concealed from everyone outside the executive branch.

In other words, he is asking Congress to roll dice with civil liberties.

There are several "Big Brother" bills currently before Congress, and all three would have serious implications for Americans' constitutionally guaranteed rights and the overall balance of governmental powers: the National Security Surveillance Act (S. 2453), the Terrorist Surveillance Program Act (S. 2455) and the Electronic Surveillance Modernization Act (H.R.5825).

The National Security Surveillance Act, introduced by Senate Judiciary Committee Chairman Arlen Specter, R-Pa., would give the government complete authority to monitor the private communications of Americans without a court order, by making judicial review of future executive branch surveillance programs optional. The bill would also rewrite the criminal code retroactively to exempt the government from following the Foreign Intelligence Surveillance Act (FISA) and allow this president and future presidents to handpick the laws he or she would like to follow.

Similarly, the Terrorist Surveillance Program Act, sponsored by Sen. Mike DeWine, R-Ohio, would give the president sweeping powers to continue spying on ordinary Americans without probable cause and ultimately pardon the illegal activity that has occurred up to this point. Under Sen. DeWine's bill, the executive branch would choose for itself whether to seek judicial approval or bypass it, even after 45 days of warrantless surveillance.

The Electronic Surveillance Modernization Act authored by Representative Heather Wilson, R-NM, would allow the government to monitor any conversations and individuals in 45-day increments, with the "option" of seeking a court order at the end of 90 days.

The bill also redefines "electronic surveillance" to exclude the monitoring of all international calls and e-mails, even those to friends, family members and businesses abroad. This would essentially give the NSA unlimited access to private communications of individuals not suspected of any terrorist involvement.

These bills would return to the bad old days before enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA) when the President enjoyed virtually limitless authority to gather foreign intelligence.

That epoch witnessed, among other things, twenty years of illegal mail openings by the FBI and CIA; twenty years of illegal interceptions of international telegrams by the spy agencies; and, seven years of misuse of the National Security Agency for non-foreign intelligence purposes. The Church Committee's findings that gave birth to FISA are even more chilling. In sum, the nation has experimented with unchecked presidential power over foreign intelligence, and the experiment proved a disaster.

It would be especially irresponsible for Congress to risk renewing the disaster when the Bush administration has presented no cogent evidence that FISA impairs its ability to thwart international terrorism, i.e., that the warrantless surveillance program of the NSA has intercepted revealing communications that could not have been intercepted under FISA.

Remember that on July 31, 2002, the Justice Department informed the Senate Intelligence Committee that FISA did not need amending because the law was nimble, flexible, and capable of foiling terrorist plots in the bud.

The three pending bills are further alarming because they do not dispute, in contrast to FISA, the President's claim of inherent constitutional power to ignore any law enacted by Congress that constrains his foreign intelligence spying. The bills would thus acknowledge the President's authority to ignore them with impunity, and would cripple the checks and balances necessary to prevent abuses.

In President Bush's Kafkaesque world, the Constitution must be destroyed in order to be saved. But in the rational conservative world of the Founding Fathers, the Constitution is best saved by being followed. That means defeating the National Surveillance Act, the Terrorist Surveillance Program Act, and the Electronic Surveillance Modernization Act.

Bruce Fein is an internationally renowned constitutional scholar and former Associate Deputy Attorney General in the Reagan administration. He is one of the six most quoted lawyers on constitutional topics in the nation.


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So you call yourself conservative?Well, so do we.We believe in national security, independent courts that respect the law, legislative oversight and individual responsibility.And we know that when these basic tenets of true conservatism are carried out in the highest levels...
Friday, 22 September 2006 12:00 AM
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