Watchdog Group Issues Damning Statement On Bush Spying Powers

Congress foolishly granted these kingly whims to Bush because of a ‘rush to legislate prior to the August recess.’Watchdog Group Issues Damning Statement On Bush Spying PowersBy Cliff Montgomery – Oct. 28th, 2007The Constitution Project, a government watchdog group, issued a clear verdict on October 4th regarding Bush’s new spying powers: Congress foolishly granted these kingly whims to Bush because of a “rush to legislate prior to the August recess,” which “led to a law that goes far beyond what was necessary to fix this problem.”We quote from the Project’s statement below:“We, the undersigned members of the Constitution Project’s Liberty and Security Committee, are deeply concerned that many of the amendments to the Foreign Intelligence Surveillance Act (FISA) contained in the recently enacted Protect America Act (Pub. L. 110-55) are unnecessarily overbroad, undermine our constitutional system of checks and balances, and fail to sufficiently protect the privacy of the communications of Americans.”The Protect America Act (PAA) will sunset in February, and we urge Congress not to reauthorize these provisions as written. […]”The broad language of the PAA appears to allow for extensive, untargeted collection of international (and perhaps even wholly domestic) communications of ordinary Americans without a court order or meaningful oversight by Congress.”The major problematic changes the Protect America Act makes to FISA are:1. Section 105A alters the definition of ‘electronic surveillance’ so that the protections that FISA previously provided to Americans will not apply, so long as the surveillance is ‘directed at’ persons ‘reasonably believed’ to be located outside of the U.S.“Thus, surveillance of emails and phone calls between a foreign person and a person in the United States can be intercepted by the NSA in the United States without a court order, and without adequate regard to the privacy rights of the Americans whose communications are intercepted, so long as the surveillance is ‘directed at’ the person outside the U.S. […]”Moreover, because government agents only need to have a ‘reasonable belief’ that the person they are targeting is outside the U.S., there remains the possibility that purely domestic calls could be inadvertently intercepted without any court oversight. […]2. Section 105B (a) permits the DNI and the Attorney General to authorize ‘the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States’ for periods of up to one year without prior judicial authorization.“The term ‘concerning’ is extremely broad and vague. By authorizing the collection of communications ‘concerning’ foreign persons, this provision could be interpreted to allow the government to collect electronic communications stored domestically without obtaining prior court authorization, and without having any suspicion that either party is an agent of a foreign power or otherwise acting improperly. […]3. Subsection 105B(e) could allow the government to directly tap into telecommunications facilities.“Our privacy laws have always demanded a strict separation between our government and private sector communications providers. Until now, those who hold access to our personal communications had an independent duty to protect our privacy and only release communications in response to a lawful order, and then only respond with what was precisely asked for.”The Protect America Act, for the first time, could permit the government to have direct, unfettered access to U.S. communications without any filter by private industry.4. The Protect America Act undermines constitutional principles of checks and balances.“The [Foreign Intelligence Surveillance Court’s] oversight role is confined under the PAA to determining only whether the procedures by which the new program will operate are ‘reasonably designed’ to ensure that acquisitions are ‘directed at’ people outside the U.S. The FISA Court can only stop an authorized program if the Attorney General’s certification that the procedures governing the program will result in acquisition of information from targeted people reasonably believed to be outside of the United States is found to be ‘clearly erroneous.'”Since its creation, the FISA Court has served as an important check to ensure that privacy concerns are adequately protected in the acquisition of foreign intelligence information. A highly deferential ‘clearly erroneous’ review standard fails to respect the important role that judicial review can play in this regard.”Congressional reporting under the PAA is likewise insufficient to provide the necessary oversight of such intrusive authority. Congress will not be told how many Americans are having their conversations intercepted, or how those communications are being used.”The lack of prior judicial authorization, the very restricted court review of procedures, and the limited congressional reporting required under the Act make clear that only the executive branch will ever know the extent to which Americans are being subjected to electronic surveillance by their government.”This result runs contrary to the tripartite balance of power the Framers envisioned for our constitutional democracy, and poses a serious threat to the very notion of government of the people, by the people and for the people.”We urge Congress not to reauthorize these overbroad and harmful provisions of the PAA.”Like what you’re reading so far? Then why not order a full year (52 issues) of thee-newsletter for only $15? 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