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Last week, the US House of Representatives passed a "compromise" version of the Foreign Intelligence Surveillance Act that gives the President additional authority to conduct surveillance on American citizens while providing immunity to telecommunications companies that have cooperated with previous Bush administration warrantless surveillance efforts. The bill goes to the Senate for a vote this week. Sen. Barack Obama shocked some of his supporters Friday by announcing his intention to vote for it, although he has promised to try to kill the telecom immunity provision.
FISA, which was originally enacted in 1978, provides special confidential courts that law enforcement officials can use to get warrants to conduct surveillance related to national security matters. After the terrorist attacks of September 11, 2001, the Bush administration erected a warrantless surveillance program as part of its Global War on Terrror. When the New York Times exposed the program in 2005, the Bush administration argued that the existing law impeded law enforcement officials' efforts to combat terrorism. After a federal judge ruled the Administration's program unconstitutional, Congress passed a new version of the FISA law that made the Administration's program legal. The "compromise" legislation now before the Senate would extend the government's surveillance powers after the current law expires in August.
Blogger Marcy Wheeler said that Obama's statement was a reponse to an open letter she wrote to to the presumptive Democratic nominee detailing the ways in which the proposed law is both unnecessary and unconstitutional:
The "political branches" are attempting to limit court review of wiretaps on Americans to a procedural review in three ways:
- The Court can only certify that the current Attorney General
has claimed the warrantless wiretap program was legal; it cannot assess
the representations to the telecoms, nor review the legality of the
underlying program.- The Court can only approve the procedures planned in a given
wiretap program, it cannot review whether the actual program is legal.- The Court can only review proposed minimization procedures intended
to protect US persons' data; it cannot review whether the
Administration is actually following its own minimization procedures.
Wheeler found Obama's response that he would support the new bill unsatisfying to say the least.
Hilzoy at Obsidian Wings is more concerned that readers understand why FISA is so important:
If the FISA "compromise" passes, it will mean that a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law.
Given a President who claims to believe, as Bush does, that whatever he
wants to do is legal so long as it is an exercise of his War Powers,
this is a recipe for disaster.
Digby is also sounding the alarm :
The FISA controversy is just one more example of this assault on the
constitution.
Amanda Simon at the ACLU blog dismisses the propsed law in no uncertain terms:
So, House Majority Leader
Steny Hoyer
announced his precious FISA
deal today and I’m sure it
will not come as great
shock to this general audience that we at the ACLU think it’s
crap. And by “crap” I mean unconstitutional.
The editors of the New York Times were hoping that Sen. Obama would reject the bill, just at he had voted down an earlier version of the law, the Protect America Act:
The bill is not a compromise. The final details are being worked out,
but all indications are that many of its provisions are both
unnecessary and a threat to the Bill of Rights.
Village Voice columnist Nat Hentoff recently opined that the next President of the US needs to make the protection of America's civil liberties a high priority in order to save our democracy:
The next president, to restore the Constitution and shred the Bush
legacy of shadow law—and, in the process, repair our deeply scarred
reputation in the world—must begin to root out the inner machinery of
Bush's parallel government.
