GOP Pushes FISA Aside For Economic Stimulus

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February 6, 2008 at 5:59 pm

(1) Blaine Kinsey says:

In his appearance at an oversight hearing before the Senate Judiciary Committee on January 30, 2008, Attorney General Michael Mukasey allowed himself to be used as a stooge while Senator John Cornyn demonstrated how to suborn perjury. Mr. Mukasey kept a straight face while Senator Cornyn attempted to blame deficiencies in the Foreign Intelligence Surveillance Act (FISA) for a 10-hour delay (it was actually 12 hours) by U.S. intelligence personnel seeking to monitor enemy combatants in Iraq after some U.S. soldiers were kidnapped in May 2007. In response to Senator Cornyn’s dissembling, Mr. Mukasey pretended that the discredited tale told by Senator Cornyn was a good example of the reason that FISA needs to be revised. The lies that were interwoven into the story about this unfortunate incident were disseminated by Director of National Intelligence Mike McConnell, who dropped this stink bomb on the House Judiciary Committee on September 20, 2007. Within a few days, responsible journalists uncovered the true story that was the basis for the fictional account given by Mr. McConnell. Government officials and documents revealed that the delay in surveilling the enemy combatants was caused by gross incompetence and ineptitude among officials in the Department of Justice (now administered by Mr. Mukasey), and this delay was not caused by any deficiency in FISA, but as Winston Churchill said: “A lie gets halfway around the world before the truth has a chance to get its pants on.”

Congress passed FISA in 1978 to curb abuses which had occurred under prior Democratic and Republican Presidents, but primarily because the Nixon Administration went medieval on the rule of law. The 110th Congress is the latest battleground in the war against our Constitution, and the concerted drive to disembowel FISA energized again when Congress reconvened. Via an op-ed in the New York Times by Mike McConnell (published Dec. 10, 2007) and a follow-up op-ed in the Los Angeles Times by tag-team member Michael Mukasey (published Dec. 12, 2007), the President trotted out two loyal soldiers to sound the clarion call. It is obvious that Mr. McConnell and Mr. Mukasey have a right to advance their opinions about FISA to a large and influential audience, and it is understandable that their opinions would be considered newsworthy by the New York Times and the Los Angeles Times. However, it is repugnant that two high-ranking members of the Bush Administration are so bereft of compelling arguments that they repeatedly must promulgate information about FISA that is demonstrably false.

Let us chronicle some of the most imprortant information omitted by Mr. McConnell and Mr. Mukasey, and let us examine some of the most misleading arguments presented by Mr. McConnell and Mr. Mukasey. Congress did not mention FISA in the Authorization for the Use of Military Force (the AUMF) in our so-called war on terror, and it is clear from the debate in Congress prior to passage of the AUMF on September 18, 2001 that Congress did not intend to alter FISA within the context of the AUMF. However, President Bush used the AUMF as a pretext for implementing the Terrorist Surveillance Program involving some indiscriminate use of electronic surveillance without a judicial warrant, which was contrary to FISA and contrary to the Fourth Amendment to the Constitution. When Michael Mukasey referred to the AUMF as justification for the Terrorist Surveillance Program during his Attorney General Nomination Hearing before the Senate Judiciary Committee, it was apparent from the skepticism in his remark that Mr. Mukasey did not find this argument convincing. Mr. McConnell only began lobbying Congress for significant changes to FISA after the Foreign Intelligence Surveillance Court (FISC) determined early last year that the Terrorist Surveillance Program did not comply with FISA, which is the law with respect to electronic surveillance of foreign intelligence sources.

The Fourth Amendment to the U.S. Constitution states: “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.” Mr. Mukasey’s alleges in his op-ed that “(t)he increased volume of applications for judicial orders under FISA impaired our ability to collect critical intelligence, with little if any corresponding benefit to the privacy of people in the U.S.” On November 8, 2007, the Senate Judiciary Committee received direct testimony from Mark Klein, a retired AT&T technician, about his personal knowledge of wiretapping by the National Security Agency (which directed the Terrorist Surveillance Program), including massive unfiltered electronic surveillance of Internet traffic and telephone calls to and from U.S. citizens. This disclosure has been an integral part of a pending lawsuit against AT&T, yet this information had received little media attention prior to the scheduling of Mr. Klein’s appearance before the Senate Judiciary Committee. Monitoring an electronic communication is a search. As specified by the Fourth Amendment, the Government must have some reasonable basis for directing a search at a particular target. Although a reasonable search does not necessarily require a warrant, probable cause is a prerequisite for any reasonable search. Contrary to what Mr. McConnell and Mr. Mukasey posit, a search is not reasonable merely because the underlying motivation (e.g., the possibility that a search may uncover dangerous illegal activity) for the search is reasonable. It is possible to understand why Mr. McConnell might not understand this legal distinction, but such equivocation is inexcusable from the Attorney General of the United States.

Perhaps because he was intent on proving that “government intelligence” is an oxymoron, Mr. McConnell babbled in his barely coherent op-ed about the inconvenience imposed by the law:
Before the Protect America Act was enacted, to monitor the communications of foreign intelligence targets outside the United States, in some cases we had to operate under the Foreign intelligence Surveillance Act, known as FISA, a law that had not kept pace with changes in technology. In a significant number of these cases, FISA required us to obtain a court order. This requirement slowed — and sometimes prevented — our ability to collect timely foreign intelligence.
In his op-ed, Mr. Mukasey parrots the claim that; “Until recently, our surveillance efforts were hampered by the unintended consequences of an outdated law, the Foreign Intelligence Surveillance Act, which was enacted in 1978 to establish a system of judicial approval for certain intelligence surveillance activities in the United States.” Mr. Mukasey and Mr. McConnell know that FISA has been updated many times since 1978 to accommodate several Presidents (including on several different occasions during the tenure of President Bush the Younger). Mr. Mukasey and Mr. McConnell also know that FISA was not bypassed because FISA was outdated; FISA was bypassed because the Bush Administration decided to use unconstitutional methods to acquire intelligence via the Terrorist Surveillance Program. What is most irksome to Mr. Mukasey and Mr. McConnell is our outdated Constitution, which retains quaint prohibitions that have not kept pace with the ability of our technology to create an efficient national security state.

Just before Congress went on vacation in August 2007, the President, Mr. McConnell and their enablers in Congress used a fake threat of an imminent terrorist attack to frighten the Senate and the House of Representatives into passing (with very little scrutiny and brief whimpering) a six-month revision of FISA called the PROTECT AMERICA ACT OF 2007 (PAA of 2007). Mr. McConnell declares in his op-ed that the PAA of 2007 made “the country safer while protecting the civil liberties of Americans”, but the reality is that the PAA of 2007 effectively nullified significant protections of U.S. citizens and other legal U.S. residents with respect to unreasonable searches and searches without warrants. The PAA of 2007 temporarily codified much of the illegal Terrorist Surveillance Program. The PAA of 2007 did not provide for any meaningful Congressional oversight, and although the PAA of 2007 provides for FISC review, this is limited to FISC review of the surveillance procedures, and it does not provide any substantive oversight of the actual surveillance. Furthermore, the language in the PAA of 2007 is extremely deferential to the judgment of the Executive, as stated in Section 105C: “The court’s review shall be limited to whether the Government’s determination is clearly erroneous.”

Recently, writing in response to columnist Joe Klein (whose self-professed ignorance about FISA did not prevent him from offering his own criticism of the timid Democrats), House Judiciary Committee Chairman John Conyers explained the negotiations between Congressional Democrats and Mr. McConnell:
We addressed every one of the concerns Mr. McConnell raised. He said he needed to clarify that a court order was not required for foreign-to-foreign communications — our bill did just that. McConnell said he needed an assurance that telecommunications companies would be compelled to assist in gathering of national security information – our bill did that. The DNI said he needed provisions to extend FISA to foreign intelligence in addition to terrorism – the bill did that. He asked us to eliminate the requirement that the FISA Court adjudicate how recurring communications to the United States from foreign targets would be handled – the bill did that. McConnell insisted that basket warrants be structured to allow additional targets to be added after the warrant was initially approved – again, the bill did that. When this legislation was described to DNI McConnell, he acknowledged that “it significantly enhances America’s security.” Yet, suddenly, on the eve of the vote, Director McConnell withdrew his support after consultation with the White House. If the media wanted to identify over-the-top partisanship, they could begin by citing the declaration of David Addington, Vice President Cheney’s Chief
of Staff, that “We’re one bomb away from getting rid of that obnoxious FISA Court,” and DNI McConnell’s assertion that by merely having an open debate on surveillance, “some Americans are going to die.”

In a interview with a a reporter from the El Paso Times newspaper on August 14, 2007 (after passage of the PAA of 2007), Mr. McConnell made exaggerated and unsupported allegations about the length of time and the amount of effort required to comply with FISA. Specifically, Mr. McConnell alleged in this newspaper interview that it takes 200 hours to assemble a FISA warrant request on a single telephone number. What Mr. McConnell failed to acknowledge is that his allegation referred to the length of time it takes to assemble a warrant request by writing in charcoal on the back of a wooden shovel, using only the light of a fireplace, and then transporting such warrant request by tramp steamer from Afghanistan to Guam for transcription. After this newspaper interview, an aide to Mr. McConnell explained to him the miracle of word processing and global communication systems.

Mr. McConnell has whined that, prior to passage of the PAA of 2007, FISA hindered the ability to collect information from foreign intelligence targets because “foreign-to-foreign” communications might be routed through a location in the United States, and the acquisition of such communications therefore was considered to be “in the United States” under the FISA statute. This defect in FISA was also cited by Mr. Mukasey in his op-ed:
The requirement that a judge issue an order before communications can be intercepted serves important purposes when the target of the surveillance is a person in our country, where constitutional privacy interests are most significant. The problem, however, was that FISA increasingly had come to apply to the interception of communications of terrorists and other intelligence targets located overseas. In FISA, Congress had embedded the crucial distinction between whether targets are inside or outside our country, but did so using terms based on the technology as it existed then. However, revolutionary changes in communications technology in the intervening years have resulted in FISA applying more frequently to surveillance directed at targets overseas. The increased volume of applications for judicial orders under FISA impaired our ability to collect critical intelligence, with little if any corresponding benefit to the privacy of people in the United States. This summer, Congress responded by passing the Protect America Act. That law, passed with significant bipartisan support, authorized intelligence agencies to conduct surveillance targeting people overseas without court approval, but it retained FISA’s requirement that a court order be obtained to conduct electronic surveillance directed at people in the United States.

Mr. McConnell states that “the intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats.”, but Mr. McConnell and Mr. Mukasey both know that the contested issue is not foreign terrorists. In his testimony before the Senate Judiciary Committee in September 2007, Mr. McConnell stated that he would oppose any language that would amend FISA only to exclude “foreign-to-foreign” communications from the scope of FISA because the intelligence-gathering agencies cannot demonstrate with certainty that those people with whom their targets will communicate would be exclusively outside the United States and because such language would not enable intelligence-gathering agencies to monitor communications of foreign intelligence targets outside the United States who may communicate with a “sleeper” or co-conspirator who is inside the United States. These are specious arguments because FISA, as it existed prior to the PAA of 2007, did not require intelligence-gathering agencies to predetermine whom their foreign intelligence targets would contact, and also did not require intelligence-gathering agencies to guarantee that communications from foreign intelligence targets would be exclusively between persons located outside the United States.

It has long been taken for granted that U.S. citizens do not lose our Constitutional rights with respect to our own government when we travel outside the country, but Section 105A of the PAA of 2007 states: “Nothing in the definition of electronic surveillance under 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.” One could argue that this change in FISA does not alter the Fourth Amendment to the Constitution, and technically that is true, but from a practical standpoint, the Fourth Amendment Constitutional rights of U.S. citizens with respect to our own government are no longer protected while we are outside the country. Although Mr. Mukasey and Mr. McConnell repeatedly emphasize the problems associated with foreign intelligence targets located outside the United States, electronic surveillance of foreign intelligence targets located outside the United States usually did not require a warrant prior to passage of the PAA of 2007 because electronic surveillance of foreign intelligence targets located outside the United States was not included in the definition of electronic surveillance under FISA [Title 50 U.S. Code, Chapter 36, Subchapter 1, Section 1801(f)].

In September 2007, Mr. McConnell testified before the Senate Judiciary Committee that the PAA of 2007 does not need to be rewritten to protect the rights of United States citizens who may be outside the United States because it is alleged that such rights are protected by Section 2.5 of Executive Order 12333, which states:
The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), shall be conducted in accordance with that Act, as well as this Order.
Former Attorney General Alberto Gonzales and his successor, Mr. Mukasey, have both testified before the Senate Judiciary Committee that they do not think that the President is subject to laws which restrict the extremely vague inherent powers of the President under their convoluted interpretation of the Constitution. We are supposed to trust the Executive to adhere to an Executive Order when it has already been established that the Executive will not abide by a law (FISA) passed by Congress. On January 24, 2008, Senator Jay Rockefeller and Senator Kit Bond offered an amendment to pending FISA legislation to protect the constitutional rights of U.S. citizens during periods of absence from sovereign territory.

In his op-ed, Mr. McConnelll states that “the intelligence community needs a law that does not require a court order for surveillance directed at a foreign intelligence target reasonably believed to be outside the United States, regardless of where the communications are found”, but the real problem as it is viewed by the Attorney General and the Director of National Intelligence concerns limitations imposed by FISA with respect to electronic surveillance without warrants of U.S. citizens and other legal U.S. residents, and the surveillance powers sought by the President and his subordinates via the PAA of 2007 far exceed the authority necessary to circumvent the alleged impediments imposed by FISA relative to foreign intelligence targets. Despite their obfuscations, the Attorney General and the Director of National Intelligence want to be able to conduct electronic surveillance without warrants and without probable cause in a wide variety of circumstances involving U.S. citizens and other legal U.S. residents, which would have required warrants under FISA prior to passage of the PAA of 2007.

Although legitimate national security concerns certainly exist, it is far too easy for the Federal Government to obstruct litigation through the process of withholding information from plaintiffs by alleging that release of such information would endanger the national security. It should be obvious, but obviously it is not obvious, that the Federal Government often alleges that revelation of certain information will endanger the national security in situations where revelation of such information would cause only embarrassment. Officially, the Supreme Court did not recognize the “state secrets” privilege until the landmark 1953 decision in UNITED STATES v. REYNOLDS, and it should not surprise anyone that (despite the tortured logic in a Federal Appeals Court decision in 2005 concerning this case) the Federal Government had invoked the “state secrets” privilege fraudulently because there was no justifiable national security issue involved in this case. Also, it should not surprise anyone that the Bush Administration has asserted the “state secrets” privilege improperly and with regularity to obstruct justice. A good example is the use of the “state secrets” privilege to suppress evidence in the case of Sibel Edmonds, who was fired by the F.B.I. for reporting security breaches and other official misconduct in the Bureau’s translator services division. Similar suppression of justice by a foreign government would be called by it’s rightful name.

For most practical purposes, the Tenth Amendment to the Constitution has been relegated to the dustbin of history by the Supreme Court, but the Tenth Amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” A naive person might reason that a common-law rule of evidence (which is neither mentioned in, nor implied by, the language in our Constitution) could not be used as a basis for obstructing those rights which are delineated in our Constitution. However, the “state secrets” privilege is an extra-constitutional construct, which can be used and has been used to nullify the Bill of Rights. Contrary to procedures outlined by the Supreme Court related to evaluation of the “state secrets” privilege, many judges (including the judge who presided over the case of Sibel Edmonds) do not thoroughly examine the evidence in question to determine whether the assertion of the “state secrets” privilege by the Government is valid, and many judges (including the judge who presided over the case of Sibel Edmonds) do not rigorously analyze whether a lawsuit might succeed in the absence of the evidence which is subject to suppression.

Despite the fact that court decisions have made it almost impossible for plaintiffs to contest the legality of the assistance obtained by the Federal Government from the telecommunications providers, Mr. Mukasey does not have faith in using the “state secrets” privilege as a method of avoiding the embarrassment which would result if illegal activities of the Bush Administration are disclosed to the public via court proceedings. In his op-ed, Mr. Mukasey addressed the retroactive immunity for telecommunications providers included in the version of FISA legislation approved by the Senate Intelligence Committee:
(I)t would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful. It is unfair to force such companies to face the possibility of massive judgments and litigation costs, and allowing these lawsuits to proceed also risks disclosure of our country’s intelligence capabilities to our enemies. Moreover, in the future we will need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.
If Congress were to grant retroactive immunity to telecommunications providers, and if the Federal Government were to withhold information (which currently is being done) from the courts on the basis that such information would endanger the national security, the provision limiting the scope of the immunity would operate as a sham.

Mr. McConnell emphasizes in his op-ed that “it is critical for the intelligence community to have liability protection for private parties that are sued only because they are believed to have assisted us after Sept. 11, 2001.” The arguments by Mr. Mukasey and Mr. McConnell with respect to immunity for telecommunication providers are very misleading because Mr. Mukasey and Mr. McConnell know that the Bush Administration consistently circumvented FISA through the implementation of the Terrorist Surveillance Program, and Mr. Mukasey and Mr. McConnell also know that current court cases involving the allegedly defunct Terrorist Surveillance Program have foundered due to the inability of plaintiffs to obtain information necessary to establish their right to sue the Federal Government and/or the owners of the information technology through which the Federal Government obtains intelligence. Resolution of this prominent defect in FISA is not addressed by pending FISA legislation, but it is a defect that will be exacerbated by any expansion of the Federal Government’s surveillance powers. On January 22, 2008, Senator Edward Kennedy and Senator Arlen Specter intoduced separate legislation that would give more direction to courts to allow litigation to proceed and simultaneously protect “state secrets”, but in the meantime, due to excessively restrictive interpretations of the “state secrets” privilege by various courts, lawsuits against telecommunication providers are the only realistic avenue for plaintiffs to discover if their electronic communications have been monitored illegally by our protectors.

Because the Federal Government can shield itself effectively from judicial review, the Federal Government has no meaningful restraint on the abuse of surveillance powers. Mr. McConnell laments that “those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits”, but the myth of telecommunication providers as victims in this soap opera is a falsehood wrapped in sentimental twaddle, and this is evident to anyone who thinks for a moment about the vast array of legal resources employed by corporations when they are litigating against Federal and State agencies or when they are lobbying Congress to reduce taxes and eliminate regulations. In his testimony before the Senate Judiciary Committee on January 30, 2008, Mr. Mukasey used the “state secrets” privilege as the basis for his argument that litigation involving the telecommunication providers should not be allowed to proceed regardless of whether the telecommunication providers may have violated FISA, and Mr. Mukasey simultaneously dismissed any possibility that that the telecommunication providers may have violated the law. It would seem that courts are unnecessary for as long as we have Mr. Mukasey available to make summary judgments about all allegations of illegal activity.

The Senate and House have been struggling against themselves during the past few months to craft a more permanent revision of FISA that corrects some of the damage they inflicted on FISA via the PAA of 2007 (which expires effective February 1, 2008). The FISA revision approved by the Senate Intelligence Committee grants retroactive immunity for telecommunications providers who assisted the Federal Government with the Terrorist Surveillance program, but the FISA revisions approved by the House and Senate Judiciary Committees do not grant retroactive legal immunity for these telecommunication providers. In contrast to the PAA of 2007, both the current House and Senate Judiciary Committee versions of FISA revision limit warrantless surveillance to circumstances which are more compatible with our Constitution, both versions establish more oversight by Congress and by the FISC, and both versions state explicitly that FISA is the exclusive means by which electronic surveillance may be conducted.

The President has threatened to veto the FISA rewrite if FISA does not provide retroactive legal immunity for telecommunication providers, and if the final version of FISA does not resemble more closely the evisceration of FISA he temporarily achieved in August 2007. The fallback position for the President’s legal advisors is their assertion that the allegedly defunct Terrorist Surveillance Program was legal because the President’s inherent power (i.e., power which is alleged to be implied but which is not mentioned in the Constitution) as commander-in-chief (which is stated but not defined in Article II of the Constitution) authorized him to bypass the powers of Congress which are detailed in Section 1 and Section 8 of Article I of the Constitution. In the Report prepared by the Senate Intelligence Committee in October 2007 to accompany the Senate version of a more permanent revision of FISA, four Republican Senators (including the ranking Republican on the Senate Intelligence Committee) added a statement reiterating their belief that the Terrorist Surveillance Program was legal because the unwritten inherent powers of the President under Article II of the Constitution superseded the legislative power of Congress as expressed through FISA.

Damning information about this issue was revealed in an August 2007 New York Times article, with reference to the PAA of 2007, by Eric Lichtblau and James Risen, who wrote:
At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress. At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration
considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.” Brian Walsh, a senior legal fellow at the conservative Heritage Foundation who attended the same private meeting with Justice Department officials, acknowledged that the meeting — intended by the administration to solicit recommendations on the wiretapping legislation — became quite heated at times. But he said he thought the administration’s stance on the president’s commander-in-chief powers was “a wise course.” “They were careful not to concede any authority that they believe they have under Article II,” Mr. Walsh said. “If they think they have the constitutional authority, it wouldn’t make sense to commit to not using it.”
As Henny Youngman would have said: “This is a strict construction of the Constitution!?!?!?”

The rebuttal to an excess of Banana Republic Dictator Theater can be found in the Supreme Court decision written by Justice Robert Jackson in the 1952 case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER:
“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

From a practical standpoint, the Constitution is whatever the Supreme Court says it is, but an assertion by the President that he is entitled to engage in massive electronic surveillance without warrants, involving citizens and other legal residents of the United States, is contrary to the plain meaning of the Fourth Amendment to the Constitution even if FISA is rewritten to authorize such surveillance and even if the Supreme Court were to uphold such a revision of FISA.

We used to be the land of the free and the home of the brave, but now we are the land of “nine-eleven changed everything”. There are few transgressions of the President which are not excused by fear-mongering with respect to our so-called “war on terror”, and this is a major impediment to a rational discussion of the limits on the President’s authority and our professed adherence to the rule of law. The President’s profligate use of signing statements to distort the meaning of various pieces of legislation is ample evidence that the President cannot be entrusted with poorly-defined powers which are prone to abuse. On May 17, 2002, the FISA Court released an opinion which stated that FBI and Justice Department officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh. In March 2007, the Inspector General for the Department of Justice released a report confirming extensive misuse of National Security Letters in a sample of four FBI field offices, and an internal audit by the FBI confirmed that the problem was far more extensive than it previously had been thought to be. The discovery several months ago that the CIA Director is investigating the CIA Inspector General is a good example of why a weasel cannot be left alone to guard the chicken coop.

Protecting the lives of our fellow citizens is not a goal which should be dismissed casually, but the threat of a terrorist attack is relatively insignificant when compared to some other threats in which we actually participate willingly or threats that we take for granted. Cigarette smoking causes over 400,000 deaths each year, and alcohol-related deaths exceed 75,000 each year, but the two most destructive drugs in the United States are legal, and Prohibition was a dismal failure due to non-compliance by the public. We know that reducing the speed limit on our highways would save many thousands of lives every year, but the driving public would oppose such a policy because it would cause too much inconvenience. Obesity-related illnesses have become a major cause of premature deaths in the United States, but people are not afraid of food. Approximately 30,000 people are killed each year in the United States by citizens and other legal residents using guns, but most people accept that disarming the populace is unconstitutional and unrealistic (at least while Charlton Heston is still living). Al-Qaida in Iraq is less dangerous to us than the amorphous army of drunk drivers in the United States. It is likely that terrorists will occasionally succeed in killing some people in the United States, and we should do everything practical that is allowed within our Constitution to prevent such deaths, but we should not bargain away our inalienable rights due to fears which are disproportionate to the actual threat.

The right of “habeas corpus” which protects people against unlawful and arbitrary detention has been one of the most fundamental principles of any free society since King John was forced by his nobles to sign the Magna Carta. Section 9 of Article I of the United States Constitution states: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Despite the fact that various aspects related to the right of “habeas corpus” are delineated in the Fourth, Fifth and (most specifically) Sixth Amendments to the Constitution, former Attorney General Alberto Gonzales stated in testimony before the Senate Judiciary Committee on January 17, 2007 that the Constitution does not guarantee the right of “habeas corpus” to every United States citizen or resident. Although President Lincoln suspended the right of “habeas corpus” selectively during the Civil War (as did Jefferson Davis in the Confederacy), this course of action was quite limited in scope with respect to the existing danger, and the suspension of these rights was very limited in duration. However, our so-called “war on terror” is an endless war, and therefore we would be wise not to jettison essential elements of our Constitution because the thought of Islamic terrorists induces us to wet our pants. Unfortunately, there are many politicians who are betting that they will not pay any political price by trading away parts of our Constitution in return for votes from a cowering public.

(1) Bend over; (2) Put your head between your legs; (3) Kiss your right to privacy goodbye. This was the new order of things as outlined in a speech by Donald Kerr, Principal Deputy Director of the Office of National Intelligence, on October 23, 2007 at the fourth annual Geospatial Intelligence Symposium in San Antonio, Texas. With reference to Internet sites like Myspace and Facebook, Mr. Kerr said that Americans essentially are giving up privacy anyway by posting personal information on such social networking sites. Mr. Kerr, age 68, stated that the two most recent generations have very different ideas about what is essential privacy and about what they would wish to protect concerning their lives and affairs. Therefore, Mr. Kerr concluded that anyone who has typed his/her name on “Google” understands that protecting privacy from our own government is not a fight which can be won, and (he really said this) “it’s not for us to inflict one size fits all”. The “greatest generation” and the baby boomers must now apologize for inflicting the Bill of Rights on our younger generations. If I understand Mr. Kerr’s spurious argument correctly (and I do), he thinks it is a waste of time and energy to try to save the Fourth Amendment to the Constitution because Generation X and Generation Y have chosen to post their lives on the Internet. This is a timely reminder that a fool and his Constitution are soon parted.

February 7, 2008 at 4:16 am

(2) uspolitics says:

Hi, Blaine … what can I say but “wow” and “thank you.”

February 7, 2008 at 4:34 am

(3) Alphast says:

Hi Blaine, Kathy,

I am sorry, but despite the excellent account of Blaine, I still fail to see why only Telecom companies should be sued. I think that the only reason the Democrats want to do this is that they don’t have the spine to attack the Bush Administration directly on its gross violations of the Bill of Rights, the US Constitution and several International treaties and agreements. So because they are too shy to impeach, they go after a couple of easy targets: “big business” are always less popular, of course. Don’t take me wrong, I think it is despicable that At&T and others have bended over and been accomplices in violating basic citizen rights. But let’s face it: how many of the Democrats now draping themselves in the toga of virtue have actually voted the FISA “evisceration”, the Patriot Act and the Protection of America Act?

I think the reason they so badly want the companies to be prosecuted is because they don’t want their own participation in this scandal being uncovered. And of course, because they simply never had the nerves to come out and denounce it when it happened.

February 7, 2008 at 7:31 pm

(4) uspolitics says:

Hi, Alphast — I think your post shows reverse causality: this bill would not make it so that ONLY telecoms could be sued. It would make it so that ONLY telecoms could NOT be sued!

February 7, 2008 at 11:06 pm

(5) LarryE says:

Alphast -

It’s not the Democrats who are going after the telcoms. These are suits filed by private individuals and organizations to a significant degree because of the very failures you mention. With the White House playing “Catch me if you can” and the Democrats shuffling their feet and going “Don’ wanna,” such suits may be the only chance to get some public accounting of the criminality involved in the wiretapping regime.

That’s why the GOP wants to kill them – and note well that until people stood up and screamed, Harry Reid was entirely willing to let them do it. And quite probably still is.

February 12, 2008 at 10:08 am

(6) Alphast says:

OK, I am getting the point. But I still wonder about the fairness of prosecuting telcom firms if nobody else is… I mean, I understand why the GOP wants to kill the law but I don’t understand why the Dems want to vote a law which concerns only these firms. Or am I totally wrong?

On a very similar topic, there is a silent move by the US administration to impose extra personality and background checks on any passenger on transatlantic flights coming from the EU. Because they know that the EU Commission will never allow it, they sneakily moved country per country, targetting in priority countries which are already desperately negotiating for VISA waivers for their nationals. You would say that it is fair game, except that normally, EU passports are all the same and obey to the same rules, which means the US should normally give waivers for all EU “Schengen zone” citizens, regardless of the actual nationality.