Domestic Spy Expansion Bill Sails Through the Congress

Bob Barr

1/2/2013 12:01:00 AM - Bob Barr

Neither Congress nor the White House has proved itself capable of reaching a decision on how to begin trimming the $16.5 trillion national debt with which these two institutions have saddled the American taxpayers. They even have been unable to come up with a reasonable measure to avoid the so-called “fiscal cliff” they themselves constructed months ago. Yet, when it comes to expanding the power of the government to spy on American citizens without warrants, both the House and the Senate last week fairly tripped over themselves in a rush to pass legislation doing just that; with President Obama almost gleefully waiting to sign the bill.

The power to electronically surveill citizens without so much as asking a judge for leave to do so, stems from 2008 amendments to the Foreign Intelligence Surveillance Act (FISA). The rapid action by the Congress last Friday was prompted by fear that this extraordinary power would lapse at the end of this month – forcing Uncle Sam to actually justify its surveillance by seeking a warrant in advance of spying on citizens.

The federal government’s abject fear it might actually have to meet the constitutional requirement of having a good reason to eavesdrop on American citizens’ conversations before doing so, prompted a majority of Republicans and Democrats in the Congress – who can hardly agree on the time of day right now – to come together and make sure our intelligence agencies were not going to be hamstrung by law or the Bill of Rights.

Senate Majority Leader Harry Reid led the fight for surveillance with the standard, post-911 cry that such extraordinary power was absolutely “necessary to protect us from the evil in this world.” His colleagues on both sides of the aisle quickly fell in line, saluted, and passed the measure by a lop-sided vote of 73 to 23. The House had offered similarly little opposition.

The dismissive manner in which the Senate refused seriously to consider a handful of amendments that would have brought a minor degree of accountability to the FISA reauthorization was particularly distressing:

· Senator Patrick Leahy (D-Vt.) proposed reducing the FISA Amendment’s sunset clause to two-and-a-half years, rather than the bill’s proposed five years, in order to allow for greater debate on the impact of FISA on privacy. This amendment was defeated 38 to 52.

· Senator Jeff Merkley’s (D-Ore.) proposal requiring the Attorney General to declassify FISA court decisions, which include significant legal interpretations, so Americans could have at least some opportunity to understand the authority on which warrantless wiretaps are executed. This amendment was defeated 37 to 52.

· Senator Ron Wyden’s (D-Ore.) proposal would have required the Director of National Intelligence to disclose approximately how many communications from American citizens have been subject to wiretapping, including “wholly domestic” communications -- an answer he has yet to receive from intelligence officials. This amendment went down 43 to 52.

· Senator Rand Paul (R-Ky.) proposed what possibly was the most “radical” of the four amendments to FISA. It would apply Fourth Amendment protections to all electronic communications, and barred government at any level from obtaining these communications without a warrant, even if held by a third-party. This amendment was defeated 12 to 79.

The shallow Senate debate and quick dispatch of any constitutionally-based amendments did a disservice to the American people and to the Constitution; which, as Merkley noted, was accomplished “under a falsely created pressure that it needs to be done without any amendments in order to match the bill from the House.” This, he added, is simply “a way of suppressing debate on critical issues here in America.”

There is a faint possibility the Supreme Court may in the coming year take up a challenge to the warrantless FISA surveillance; but the High Court in recent years has shown itself troublingly differential to almost every claim of executive power in the name of “national security.” Some federal courts have gone so far as to deny persons subjected to warrantless surveillance the ability to even bring a lawsuit challenging such power, on the theory they could not definitively prove they were the subjects of secret monitoring – a virtual impossibility given the secretive nature of the government’s actions.

Thus, even though warrantless wiretapping of U.S. citizens is unconstitutional on its face, the broad reach of FISA coupled with the inherent nature of secret surveillance make it virtually impossible to challenge what we all know to be illegal.