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Opponents Call FISA Changes Unconstitutional

Philadelphia Triibune, News Report, Larry Miller Posted: Jul 14, 2008

This month marked what some believe is another step toward George Orwells fascist nightmare of 1984, when President George W. Bush signed off on a measure seen by some as a clear violation of the U.S. Constitution.

On Thursday President Bush signed the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008.

The hotly debated update grants immunity to telecommunications companies that aided intelligence agencies in spying on citizens suspected of having ties to terrorists.

It also revises the protocols on government eavesdropping, perusal of electronic mail and other forms of surveillance.

President Bush said the bill would increase national security while respecting the freedoms of American citizens, but opponents arent so sure.

I'm pleased to sign landmark legislation that is vital to the security of our people, Bush told reporters during a press conference on Thursday. The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home.

The bill I sign today will help us meet our most solemn responsibility: To stop new attacks and to protect our people. Members of my administration have made a vigorous case for this important law.

The American Civil Liberties Union immediately filed a lawsuit in the U.S. District Court for the Southern District of New York challenging the amendment, which it sees as a violation of the First and Fourth Amendments of the Constitution the very heart of the freedoms that Americans take for granted.

We filed our lawsuit about an hour after this bill was signed, said Melissa Goodman, a staff attorney from the ACLUs National Security Project. It cuts quite deep into our privacy. What Congress has done is not just legalize the NSA wiretapping but gives the federal government sweeping new powers to conduct even surveillance of our international communications without telling the courts who or why that person is being targeted.

Theres no oversight on the governments surveillance powers. They say this new amendment is a compromise but its not. It allows the government to go even further and all it has to say is theyre looking for foreign intelligence.

Under the provisions of the original FISA the government had to go to the FISA court and show probable cause as to why a particular individual was targeted for surveillance.

Not any longer.

This legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications, said ACLU Executive Director Anthony D. Romero in a statement following the presidents signing of the measure. "Spying on Americans without warrants or judicial approval is an abuse of government power and that's exactly what this law allows.

The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged. Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights. The new wiretapping law fails to provide fundamental safeguards that the Constitution unambiguously requires."

The bill passed the Senate on Wednesday by a vote of 69 to 28 and in June, it passed the House of Representatives by a vote of 293 to 129.

Democratic presidential nominee Barack Obama gave the bill a thumbs-up, whereas Republican nominee Sen. John McCain was not present for the vote.

Obamas affirmative vote is seen by some as a reversal of an earlier position opposing the amendment, when the senator voted in favor of amendments to strike down retroactive immunity for telecommunications companies.

Obama supported other amendments to improve the bill, including a provision to protect citizens from unwarranted surveillance.

"I am proud to stand with Sen. Chris Dodd, D-Conn., Sen. Russ Feingold, D-Wis., and a grassroots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty, Obama said in a prepared statement. There is no reason why telephone companies should be given blanket immunity to cover violations of the rights of the American people we must reaffirm that no one in this country is above the law.

We can give our intelligence and law enforcement community the powers they need to track down and take out terrorists without undermining our commitment to the rule of law, or our basic rights and liberties.

This administration continues to use a politics of fear to advance a political agenda. It is time for this politics of fear to end. We are trying to protect the American people, not special interests like the telecommunications industry. We are trying to ensure that we don't sacrifice our liberty in pursuit of security, and it is past time for the administration to join us in that effort."

McCain was not present for the Senate vote but in June he did issue a statement of support and disapproval of past challenges by House Democrats and continuing ACLU resistance.

For months, House Democrats, the ACLU and the trial lawyers have held up legislation to modernize our nations terrorist surveillance laws, McCain said in a prepared statement. Today, the House passed a compromise bill to end this impasse.

I hope Senate Democrats will allow this matter to quickly be considered by the Senate and sent to the President for his signature. I will support this measure and hope that politics will be put aside in favor of this vital national security matter.

The Foreign Intelligence Surveillance Act (FISA) is a law that was passed in 1978 after the Watergate scandal. With certain restrictions it allows the government to engage in the physical collection of and electronic surveillance of foreign intelligence information between or among foreign powers on territory under the control of the United States.

The allegations raised by the American Civil Liberties Union are that since the 9/11 terrorist attacks, wiretaps were done with the consent of telecommunications providers but without the knowledge of their customers. In other words, on presidential orders, the National Security Agency has been reading e-mails and tapping phones without a warrant actions that were explicitly forbidden under FISA.

Those who use fear and the specter of terrorism to justify spying on Americans are attempting to make work like mine impossible, said Chris Hedges, reporter for About The Nation and a former foreign correspondent for The New York Times. In a prepared statement Hedges, who is one of the plaintiffs named in the lawsuit, said Constitutional protections are in peril and that the new legislation is a step toward totalitarianism.

Hedges also expressed concerns that the passing of the legislation would hinder his work as a journalist since many of his sources are foreign nationals his overseas calls could fall under scrutiny.

They seek to silence reporting that does not cater to their peculiar vision of the world. I am wary of late-night, last minute briefings, of rushed legislation and bills which strip from the law the most fundamental checks and balances upon which our democracy depends, said Hedges. I believe that excessive surveillance in the name of fear is the first step toward totalitarianism. This law does away with the basic privacy protections guaranteed by the Fourth Amendment.

I often report from countries where totalitarian governments routinely violate the privacy of their citizens and where it is not safe to express political or personal opinions to any outsiders.

The perception of the United States as a law abiding, rights-respecting country, in the past, often created a sense of security for my sources. They knew they did not have to worry about their rights being violated by the American government. They could speak with me freely.

I rely on that sense of privacy in order to get to the truth. Without it, free speech and the freedom of the press hallmarks of a free society suffer incalculable harm. When privacy and free speech are diminished, our democratic institutions crumble.

Related Articles:

Domestic Spying Under Scrutiny

Immigrants Must Be Vigilant About Eavesdropping Legislation

Bushs Illegal Wiretapping Has Ugly Precedent in Black Community

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