Today's Article
Congress foolishly
granted these kingly
whims to Bush
because of a 'rush
to legislate prior to
the August recess.'
The American Spark
Watchdog Group Issues Damning Statement On Bush Spying
Powers

By Cliff Montgomery - Oct. 28th, 2007

The 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."



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