The House of Representatives recessed for the President's
Day District Work period on February 14 without renewing the
FISA surveillance powers demanded by President Bush. The point
of contention between the president and the House is the inclusion
of retroactive immunity for telecommunications companies, protecting
them from lawsuits resulting from cooperating with federal authorities
in warrantless eavesdropping on telephone calls and e-mail messages
between foreign countries and the United States.
Follow this link to the original source: "House
Leaves Surveillance Law to Expire"
The Senate voted 68-29 on February 12 to update the Foreign
Intelligence Surveillance Act of 1978 (FISA) and to grant retroactive
immunity for the telecom companies. President Bush praised the
bill, saying it provides "fair and just liability protection
to those private companies who have been sued for billions of
dollars only because they are believed to have done the right
thing and assisted the nation after the September 11th terrorist
attacks."
The Senate version, passed with bipartisan support, notably
that of Senator Jay Rockefeller (D.-W. Va.), would protect telecom
companies from lawsuits resulting from cooperating with federal
authorities in warrantless eavesdropping on telephone calls
and e-mail messages between foreign countries and the United
States.
However, the House was reluctant to approve this version, designated
H.R. 3825. House Democrats wanted a temporary extension of the
measure (a six-month extension was passed last summer), but
the president took an all-or-nothing approach and, for the moment,
got nothing.
(Article continues below)
In order to inject some clarity into this debate, it is necessary
to review the Foreign Intelligence Surveillance Act (FISA).
What is it, and what is its significance for Americans’
security — and privacy?
FISA has been discussed on multiple occasions in these JBS
Newsfeeds andd was the subject of an Alert posted last December
17. As was noted in that Alert:
The Foreign Intelligence Surveillance Act (FISA) effectively
gives the Executive Branch of the federal government a blank
check to eavesdrop on telephone calls and e-mail messages
between foreign countries and the United States….
Executive Branch intelligence agencies and the nation's largest
telecommunications companies have been working for many years
in almost complete secrecy, with no oversight and no recognition
of legal limits, to spy on Americans, first in the name of
the War on Drugs, and then in the name of the War on Terror.
These warrantless wiretaps are a violation of the Fourth Amendment,
which protects Americans against unreasonable searches and
seizures, and requires that any searches be conducted only
upon issuance of a warrant under conditions of probable cause.
The original Foreign Intelligence
Surveillance Act (FISA) of 1978 created a court that meets in
secret for the purpose of approving or denying requests for
search warrants. Under the Protect America Act of 2007, however,
the US government may place wiretaps on communications that
begin or end in a foreign country without supervision by the
FISA Court.
Over the course of the post-9-11
"War on Terror" — a "war," by the way,
which has never been declared by Congress, as the Constitution
mandates — the Bush administration has constantly escalated
its demands to engage in spying. A January 27, 2006 Justice Department
policy paper, "The NSA Program to Detect and Prevent Terrorist
Attacks, Myth v. Reality," complained that "FISA requires
the Attorney General to determine in advance that a FISA application
… will be approved by the court before an emergency authorization
can be granted, and the review process itself can and does take
precious time."
When it came time to renew FISA, the administration decided
to close up what it perceived as one weak area in its authority,
the liability of the government's private partners. A Washington
Post writer noted on January 25: "The White House and Republican
lawmakers are pushing to make the law permanent while also adding
legal protections for telecommunications companies, which face
dozens of lawsuits."
Because of the wisdom and foresight of our Founding Fathers,
Americans have enjoyed a level of privacy free from government
surveillance almost unmatched in the world. We cannot repeat
the words of the Fourth Amendment too often:
The right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Had modern technology existed at the time the above words were
written, electronic methods of communication undoubtedly would
have been added to the list of things protected. It is not enough
to say that we are fighting a war against terrorism and use
that as a pretext for increasing government power to the detriment
of our citizens. As Thomas Jefferson noted in 1821:
The President's Day recess has bought us precious time. Americans
still have time to stop the extension of FISA's powers by contacting
their U.S. representative while he or she is back home during
this district work period. Find the number of your representative's
district office in your telephone directory, under government
listings, or click here
to take action online.
