Today's Article
Thanks to
Congress, George
W. Bush now may
have the authority to
destroy what
remains of the  
Fourth Amendment.
The American Spark
Expert Tells House Committee To Curtail Bush's New Spy Powers

By Cliff Montgomery - Sept. 25th, 2007

America's gutless Congress slithered to a new low shortly before its August recess, when it agreed to the Bush
Administration's requested amendments to the Foreign Intelligence Surveillance Act (FISA). George W. Bush
now may have the authority to destroy what remains of the the Fourth Amendment. Many civil liberties experts
were horrified.

We quote below from the September 5th, 2007 statement of Morton Halperin, Director of U.S. Advocacy for the
Open Society Institute, before the House Judiciary Committee:

"Mr. Chairman...I am deeply troubled by the amendments to FISA passed by the Congress before the August
recess.

"I am troubled because Congress granted to the Executive Branch broad authority, in violation of the Fourth
Amendment, to intercept the phone calls and emails of persons in the United States.

"Moreover...Congress enacted this legislation without any opportunity for hearings and debate--and without
the input of civil libertarians who are as dedicated to our security as they are to the protection of civil liberties
and constitutional rights.

"Congress enacted legislation the meaning of which is simply not deducible from the words in the text.

"Clearly, the [Bush] Administration insisted on this language and rejected a text offered by the congressional
leadership because [the administration] wants to conduct interceptions not permitted under the alternative
language. However, it has not explained why that surveillance is necessary--nor what interceptions are
permitted under the language as enacted...

"The legislation enacted by the Congress at the insistence of the President excludes the FISA court from any
meaningful role in permitting the surveillance to go forward.

"The telephone companies and ISPs are being sent a dangerous message that they should and must
cooperate with a request to facilitate interception of messages simply on the say-so of the Attorney General.

"The legislation [also] does not reaffirm that FISA is the sole means for intercepting conversations and emails
in the United States for intelligence purposes.

"The enactment of the initial FISA bill following the Watergate and intelligence scandals provides some
important lessons which should guide the Congress...Since I was deeply and continuously involved in those
careful negotiations, I thought I could be most useful to the committee in describing some of that history.

"The enactment of FISA was triggered in large part, as I believe these recent amendments were, by concerns
expressed by the telephone company.

"In those long gone days, there was just one telephone company [AT&T]...AT&T and the FBI had a simple
arrangement. An official at the Bureau would simply call the AT&T security officer and give him a phone
number. Nothing more was needed, and the calls were flowing into the local FBI field office.

"As the scandals broke, the FBI learned that some of these numbers were not [those of] the Soviet
Ambassador, but [of] White House and NSC officials and journalists as well as business leaders and civic
leaders, including Martin Luther King, Jr.

"Some of those who learned that they were overheard (including me and my family) sued the phone company
along with government officials. AT&T had had enough and warned the Justice Department that the days of
blind cooperation were over.

"Attorney General Levi on behalf of the Ford Administration came to the Congress and asked for legislation.
Congress agreed to authorize interceptions for intelligence purposes under a different standard than for
criminal wiretaps, but only after insisting on four essential principles:

  • Surveillance could occur only after the FISA court issued an order, or the situation fit into a few tightly
    drawn and fully specified exceptions to the warrant requirement.

  • The phone company would be required to cooperate if given a court order or a certification by the
    Attorney General that the situation met one of the limited specified exceptions, and that the
    requirements spelled out in FISA for such an exception had been fully satisfied.

  • No U.S. person--or any person in the United States--would be the target of surveillance, except if the
    FISA court found individualized probable cause about that person.

  • The draft legislation needed to be subject to full public hearings as well as classified hearings, at which
    the meaning of each phase in the legislation was fully explained and civil liberties groups were given an
    opportunity to testify.

"We must go back to these core principles. The Congress must insist that senior officials of the intelligence
community testify in public and in private before the Judiciary [and]...Intelligence Committees, and explain in
detail what meaning they attach to each of the new and arcane phrases in the bill.

"Administration officials must also explain in detail why the earlier bills drafted by the Congress in response to
the described need did not accomplish these objectives."



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