Congress Should Block Bid for New Domestic Spy Powers


by Don Sutherland - Date: 2007-04-13 - Word Count: 1166 Share This!

National Intelligence Director Mike McConnell recently circulated a draft bill that would grant the NSA authority to monitor foreigners without obtaining FISA (Foreign Intelligence Surveillance Act) court approval and grant immunity to telecommunications firms currently facing possible civil litigation over their role in such surveillance that culminated in the U.S. District Court's overturning President Bush's domestic surveillance program. McConnell's draft legislation would permit the monitoring of foreigners by such tactics as phone taps and the monitoring of U.S. e-mail accounts outside the FISA process. Although McConnell is likely to argue that the realities of the post-9/11 world require such a program, the costs in terms of eroded Fourth Amendment protections and elevated risk of abuses would likely outweigh any incremental benefits that might result from the dramatic broadening of the government's domestic surveillance authority.

Currently, the FISA framework is sufficiently robust and flexible to handle the challenges presented by the post-9/11 world. Under FISA, the government can petition a secret court for approval to monitor a person if there is probable cause to believe that such a person is working for a foreign power against the United States. The same holds true with respect to members of international terrorist organizations such as Al Qaeda. In short, the FISA process already permits the monitoring of suspected terrorists, but such monitoring requires FISA court consent based on the existence of probable cause. The existing approval process merely offers a checkpoint to ensure greater accountability and an evidentiary standard to ensure that there is reasonable basis for such monitoring.

All said, the draft bill would not, for the first time, create a mechanism for monitoring suspected terrorists. That mechanism already exists and should be actively employed. Instead, the bill would eliminate the framework for accountability that is built into existing law and overturn the reasonable evidentiary standard that must be met in order to carry out such monitoring. Such legal protection is essential to securing the Constitutional foundation on which U.S. society rests.

In the wake of the American Revolution, the experience of excessive searches and seizures under King George III loomed large in the memory of the new nation's people and leaders. In the years leading up to the American Revolution, the issuance of general warrants and writs of assistance was pervasive. As early as 1765, a court expressed concern over the practice of issuing such warrants that were aimed at stamping out "seditious libel." Today, one could readily substitute "terrorism" for "seditious libel," but the concern would remain as valid as it was more than two centuries ago.

Then, Lord Camden warned that if such tactics were found acceptable, "the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel." The ratification of the Fourth Amendment was intended to preclude those and similar abuses. Since then, courts have regularly reaffirmed the Fourth Amendment's protection against "searches conducted outside the judicial process without prior approval" by a judge as "unreasonable" but have allowed "a few specifically established and well-delineated exceptions."

If FISA protection were eliminated, historical precedent strongly suggests that abuses could be expected. Leading up to the enactment of legislation that created FISA, the Church Committee revealed in 1976 that every President from 1946 to the time of its investigation had engaged in "warrantless wiretaps" on national security grounds and that there had been "numerous political abuses." The Church Commission proclaimed:

Too many people have been spied upon by too many Government agencies and too much information has been collected… The Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone "bugs", surreptitious mail opening, and break-ins, has swept in vast amounts of information about the personal lives, views, and associations of American citizens.

That experience was not an isolated exception. On April 11, 2007, The Washington Post reported, "[T]he Justice Department and FBI have been sharply rebuked for bad bookkeeping and other mistakes involving their powers under the USA Patriot Act to secretly demand Americans' e-mail, financial and other personal records through…national security letters."

Invocations of national security do not offer sufficient basis to overturn long-established and specific Constitutional protections. The domestic surveillance abuses cited by the Church Committee occurred, on occasion, precisely when statutory prohibitions "were intentionally disregarded in the belief that because the programs served the 'national security' the law did not apply." Neither are arguments that the terrorists exploit the U.S. legal system, while seeking to undermine U.S. national security, any more persuasive. "On some occasions when agency officials did assume, or were told, that a program was illegal, they still permitted it to continue," the Church Committee revealed, adding, "They justified their conduct in some cases on the ground that the failure of 'the enemy' to play by the rules granted them the right to do likewise, and in other cases on the ground that the 'national security' permitted programs that would otherwise be illegal." A culture in which the most fundamental rules are trampled is especially hospitable for the rise of tyranny.

Considering that the McConnell legislation would eliminate the accountability that is provided by the FISA process, as well as the evidentiary standard of probable cause, it could facilitate the kind of abuses the Church Committee addressed some three decades ago. That Committee found, "The overwhelming number of excesses continuing over a prolonged period of time were due in large measure to the fact that the system of checks and balances-created in our Constitution to limit abuse of Governmental power-was seldom applied to the intelligence community."

In addition to rejecting the McConnell draft, Congress should be prepared to take such additional measures as might be required to shore up the nation's Constitutional protections. "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad," former U.S. Supreme Court Associate Justice Sandra Day O'Connor explained in the war on terrorism-related Hamdi v. Rumsfeld decision.

In the end, Congress has no higher duty than to safeguard the integrity of the U.S. Constitution in which the Nation's most cherished freedoms are enshrined into law. Constitutional prohibitions against unreasonable searches and seizures were established for good reason based on the early historical experience. More than two centuries of U.S. history and jurisprudence have validated those protections time and again. Rather than advocating legislative changes that would have the genuine potential to undermine crucial Fourth Amendment protections and lead to the kind of abuses that FISA was established to prevent, Mr. McConnell would do better to rebuild the Intelligence Community's human intelligence capabilities and to direct its agents to make active efforts to directly or indirectly penetrate Al Qaeda and other State or non-State actors that threaten U.S. national security.


Related Tags: united states, terrorism, constitution, privacy, fourth amendment, domestic surveillance

Don Sutherland has researched and written on a wide range of geopolitical issues. Your Article Search Directory : Find in Articles

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