Bush Signs FISA Amendment Into Law
It's a done deal. President Bush today signed the FISA Amendment into law. Law Prof Jack Balkin justly blames the Democrats.
Following up on Big Tent Democrat's analysis of the FISA bill, I have a few thoughts and additional links. First, thanks to Balkanization for posting the link to the FISA bill. It's S. 1927 (pdf).
As Marty Lederman noted,
The key to understanding the FISA bill is that it will categorically exclude from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States," even if the surveillance occurs in the U.S.; even if the surveillance has nothing whatsoever to do with Al Qaeda, terrorism or crime; and, most importantly, even if the surveillance picks up communications of U.S. persons here in the States -- indeed, even if the surveillance is in part designed to intercept U.S. communications, so long as it is also "directed at" someone overseas.
....The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas.
Among those who sued over the warrantless NSA program were U.S. lawyers representing clients charged with terror offenses. At the time the suit was brought, lawyer Nancy Hollander, one of the plaintiffs, wrote:
More...
The oldest privilege within the common law tradition on which this country was founded is the attorney-client privilege. A client has every right to believe that what he or she tells a lawyer in confidence will be secure. But now there is every indication that the government has listened to conversations I have had with my clients both here and abroad. My practice requires that I speak with lawyers living abroad, with witnesses and experts around the world. I no longer use the telephone, fax or email to communicate with clients, lawyers, witnesses, experts in any of my cases that involve terrorist related charges. I must travel the world to represent my clients as they have the right to be represented – zealously within the bounds of the law and with their confidences and my work-product protected.
Congress passed the wiretap laws and the FISA to provide access to telephone, email, and faxes when necessary to protect the security of the country. If those laws are violated, we can ask a court to suppress the evidence. If we believe the laws are unconstitutional, we can ask a court to find them so. If the Executive chooses to take it upon itself to ignore the Constitution and the laws Congress has passed, we have no recourse and our democracy is in peril.
The FISA Amendment passed by Congress this weekend extends and legalizes Bush's warrantless NSA surveillance program. As the ACLU reports,
The legislation that passed would allow for the intelligence agencies to intercept – without a court order – the calls and emails of Americans who are communicating with people abroad, and puts authority for doing so in the hands of the attorney general. No protections exist for Americans whose calls or emails are vacuumed up, leaving it to the executive branch to collect, sort, and use this information as it sees fit.
...“The administration is on the verge of reviving a warrantless wiretapping program even broader than the illegal one it conducted before.
So, by amending FISA, Congress has legalized that which was illegal, leaving us with no recourse at all.
How is the FISA Amendment illegal? By making an end run around the Fourth Amendment. From the ACLU's letter to Congress this week:
Fundamentally, the Administration’s proposal allows the government to scoop up all international communications of Americans without a warrant, retain those communications forever, and data mine them without review or limitation. The government could then use any information gleaned from this warrantless wiretapping to support future court orders. This is backwards. It turns the Fourth Amendment on its head. And, it does great damage to the Foreign Intelligence Surveillance Act, enacted and repeatedly modified to protect Americans’ privacy from an overreaching intelligence community.
I hope all of you interested in this issue will take a minute to read the ACLU's ten myths and facts about FISA.
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