July 31, 2008

Blank Check

By: Maria Robinson

It’s understandably difficult to rally Joe Six-Pack—or even Jane Starbucks—around an issue as murky as the recently ratified Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008; the legislation is complex, and with its purported focus on “foreign” intelligence gathering, its relevance isn’t as obvious as that of rising oil prices or the collapse of Fannie and Freddie. It should be less of a challenge, however, to rouse the Senate in matters of Constitutional significance.  Yet, despite legitimate concern from civil libertarians regarding the bill’s impact on Fourth Amendment rights, the measure was approved, unamended, by a vote of 69-28.

The new FISA rules invest the executive branch with much of the power it had previously asserted for itself illegally through its Terrorist Surveillance Program.  The president now has the jurisdiction to spy on both Americans and foreign nationals–both domestically and abroad–unfettered by meaningful probable cause restrictions and with limited Congressional or judicial involvement.   In addition, the bill provides retroactive immunity to all communication service providers who took part in the government’s surveillance program before it was legal, and guarantees protection from prosecution to any providers who assist with intelligence-gathering efforts in the future.

Close scrutiny of the bill reveals numerous encroachments on individuals’ rights and a marked consolidation of executive power. The language delineating the procedures for securing a court order or conducting a physical search has been substantially weakened, loosening the requirements for authorization while expanding the avenues through which final approval can be obtained.  Phrasing around the acquisition and collection of American citizens’ voice and data communications creates a linguistic loophole that renders the “dragnetting” of domestic correspondence legal-by-technicality.  Another provision explains that Congressional briefings on FISA-related matters will be conducted  “in a manner consistent with national security,” assuring that the President can operate with substantially less oversight, in many cases relying on an internal system of self-regulation with little-to-no involvement from outside the executive branch and the secret FISA court.

Many of the bill’s supporters have downplayed Fourth Amendment concerns, claiming that FISA 2008 actually bolsters privacy rights while circumscribing presidential authority.  Barack Obama, who voiced objection to telecom immunity, nevertheless voted in support of the legislation on the grounds that it “restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance . . . [and] firmly re-establishes basic judicial oversight over all domestic surveillance in the future.”  After the bill was passed, Orin Kerr, a professor at George Washington University Law School, wrote a post at the popular law blog Volokh Conspiracy that puzzled over the negative coverage of the new FISA law, arguing that “the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.”

But the Protect America Act—a bill that provided the president with almost unlimited power to pry into the lives of private citizens—cannot be used a baseline for assessing the appropriate limits of presidential power versus the protection of individuals’ constitutional rights.  In fact, it’s only since the enactment of the USA Patriot Act materially altered the landscape of the civil liberties debate that FISA has become emblematic of solidly pro-privacy legislation.  Prior to 2001, FISA ‘78 was more often criticized as a rubber-stamp for presidential power than heralded as a key pillar of citizens’ rights.  Though the average American can be forgiven for lacking a historical perspective on the law, the average Senator should have a clearer view as to the degree of constraint (or lack thereof) exercised through the original legislation, and should therefore be acutely aware of just how grievously the current incarnation of the FISA bill compromises not just the rights of the people, but of Congress itself.

A robust and responsible Congress would think twice before granting the Executive the expanded powers and diminished accountability that it has repeatedly, unlawfully, and unapologetically claimed as its own.  Sadly, today’s Congress is neither robust nor responsible.  Instead of protecting the Bill of Rights and reasserting the doctrine of co-equal powers, the Senate has chosen to abrogate its own power under the false assumption that vigorous debate or a legislative log-jam would compromise national security.

Thus, while much has been made of the revised FISA bill’s twin blows to corporate accountability and the Fourth Amendment, the greater danger is less in what it contains than in the fact of its passage.  Congress’s reluctance to exercise itself as an equal and independent body of power has been a concern for decades; the passage of FISA 2008 is simply the latest indication of the continued trend toward the rise of executive power at the expense of the legislature, and our nation’s concomitant slide from the era of laws to the era of men.

-Maria Robinson is a writer living in Northampton, MA. Her website can be found at maria-robinson.com.