Republican Senators Pretending To Be Tough on Terrorism While Ignoring Civil Liberties

In an attempt to counter recent evidence that Republican policies have increased our risk from terrorism, Congress is preparing legislation before the election to use to claim they are tough on terrorism and Democrats are aiding the terrorists by voting against their actions.
Latest word on the Senate’s consideration of legislation on detaining and trial of terror suspects is that a Democratic-sponsored amendment to guarantee suspects access to the courts was defeated. The New York Times also has an excellent editorial summarizing the flaws in the bill.

Yesterday the ACLU issued a press release on the National Security Surveillance Act, debunking Senator John Sununu’s claims that the compromised reached “protects the rights afforded to citizens in the Constitution.” I’ll post their debunking of these claims under the fold.

Rhetoric: “The deletion of language that raises questions about the roles Congress and the Executive Branch play in regulating surveillance activity within the United States.”

Reality: Deleting Title VIII of the bill does not delete the codification of the power to conduct warrantless wiretaps of Americans that the president has claimed. With all the other changes to the law the bill would make, the administration does not need that provision. As even Senate Judiciary Committee Chairman Arlen Specter (R-PA) said on CNN’s Late Edition on Sunday, September 24, 2006: “We have taken out the phrase that nothing in the bill impairs the president’s Article II power. That was surplusage. There’s nothing in legislation that can affect the constitutional power of the president.”

This change was not worth endorsing the legislation. The rest of the bill puts into law that the president can wiretap Americans without the individual warrants required by the Fourth Amendment. While the bill would allow a secret court to approve entire secret surveillance programs in the US, it does not require the court to know the names of Americans whose calls or emails would be monitored, any facts for such intrusive monitoring or whether each individual wiretap is useful or useless. Plus, the way the bill rewrites FISA, the legislation would unleash the NSA to monitor more American conversations and emails without warrants. And, the bill still changes the criminal law to allow warrantless wiretapping “under the Constitution” or FISA, pardoning the president from any accountability for violating FISA or not following even its revisions going forward.

Rhetoric. “Language clarifying that while the Foreign Intelligence Surveillance Court has the authority to review and approve electronic surveillance programs in their entirety, additional approval by the Court must be sought for surveillance of specific individuals identified by an approved electronic surveillance program. Once an electronic surveillance program has identified an individual of interest, further FISC approval is needed to ensure that an individual’s Fourth Amendment rights are not violated.”

Reality: Caving in on this point is a real betrayal of the Fourth Amendment because by allowing Americans to be monitored for extended periods without individual warrants their constitutional rights will already be violated. The bill would codify the president’s claim of power to engage in secret surveillance of Americans’ calls and e-mails without showing a court any evidence any individual is conspiring with a terrorist organization. It does so by changing the definitions and also by allowing the court to approve a program of surveillance without knowing the names of Americans who would be subjected to such surveillance– it’s all in the administration’s hands. This allows secret surveillance of Americans without the probable cause required by FISA and the Constitution.

Basically, this permits the government to conduct surveillance on individuals without showing any evidence for doing so to a judge. If the government had such information it could easily get a warrant from the FISA court — that court has approved more than 20,000 orders in the last 28 years, turning down outright less than .0005%. Under the bill, however, the president gets to sweep up anyone in the US for secret wiretaps and bugging without probable cause. What the alleged improvement requires is simply this: if, during this secret surveillance without probable cause, the government then develops probable cause, the Attorney General should ask for a warrant to conduct surveillance-actually, to continue to conduct that surveillance-on that individual as soon as “practicable,” but with no time limit. This means that for Americans being surveilled by the NSA without probable cause, the government never has to go to the court and to justify continued surveillance on each person. In other words, the bill allows innocent Americans to be subject to indefinite, secret surveillance without court oversight of individual wiretaps.

Rhetoric. “Language ensuring that warrantless electronic surveillance of an agent of a foreign power does not include U.S. persons. In order to conduct electronic surveillance of a U.S. person, a court ordered warrant is necessary.”

Reality: This is simply not true-the bill actually expands that definition in ways that make it more likely Americans’ conversations will be swept up by the NSA by expanding who counts as an “agent of a foreign power” in the first place. The bill would expand access to Americans’ conversations without any connection to al Qaeda because it would allow the NSA to get secret court approval for wiretaps of people who are expected to receive or possess “foreign intelligence” here–but foreign intelligence is not limited to terrorism and includes information about “foreign affairs” of the US or its national defense or security, which includes trade matters. Thus, any foreign-owned or incorporated banks, financial institutions, airlines, telecommunications or internet companies, as well as foreign journalists, could be subject to secret wiretaps, and Americans doing business with these corporations or individuals could have their personal communications, financial information and travel plans unknowingly swept in. This is just another way in which the bill even as changed is unworthy of support.

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5 Comments

  1. 1
    janet says:

    To communicate to the American people, the republicans will say this bill shows they are tough! Bush is tough! Beat their chest!

    But in reality they voted for the crumbling of everything we have stood for. Now we condone torture and who cares about something stupid that you can never remember on your history test in high school–the writ of habeas corpus.

    Bush needs to be in jail accused of treason and then let’s apply HIS law to him and just let him sit there with no access to the courts or any system of justice. Maybe then he would remember what habeas corpus was all about.

  2. 2
    Ron Chusid says:

    janet,

    I must respectfully disagree. 🙂

    Bush may deserve to be in prison for treason and war crimes, but he should be treated in accordance with our principles for justice. Once Bush is resumed from office, these principles must be restored, and that means applying them to everybody–even George Bush.

    Maybe Bush would learn a lesson from this. Or maybe not. Either way, we would not be compromising our principles as a nation.

  3. 3
    janet says:

    Come on Ron–don’t you get the Seattle brand of cynicism?? Do you really think I would advocate throwing out our principles even as applied to George Bush?

    It is irony–because this is what HE is advocating. Geez!

  4. 4
    Ron Chusid says:

    That’s why I added the smiley–realizing we were really on the same side here. Plus it gave a valid context for actually writing about Bush being thrown into prison for war crimes.

  5. 5
    janet says:

    I know. I saw the smiley face. Hee Hee!

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