Guest blog/Adam Schiff (D-CA): Pulling the Plug on Warrantless Eavesdropping of Americans

[babylonsister]

http://tpmcafe.com/blog/specialguests/2007/may/22/pulling_the_plug_on_warrantless_eavesdropping_of_americans

Special Guests Blog
Pulling the Plug on Warrantless Eavesdropping of Americans
By Congressman Adam Schiff | bio


snip//

The Founders designed a system of checks and balances, built on three separate and co-equal branches, in order to ensure that no one branch of government would become too powerful or engage in unchecked activities. A common theme that echoed throughout the deliberations at the Constitutional Convention was one of distrust, and particularly distrust of the Executive. This “distrust” is woven in the very fabric of our system of checks and balances today, designed to ensure that fundamental liberties are safeguarded even in times of war or great crisis.

On the House Floor, the chief opponent of our amendment seemed to argue instead that our system of three branches was unworkable in the fight against terrorism – asserting that because FISA needs to be amended, but has not yet been amended, we must allow the President to simply ignore it. That, I submit, is unconstitutional and a threat to the very freedoms that Americans hold dear. It also ignores the fact that FISA has been amended many times, and recently.

After the September 11th attacks, it was clear that fundamental changes to our existing surveillance and anti-terrorism statutes were required, both because of “walls” between federal law enforcement authorities, as well as radical technological changes that had occurred since these statutes were last revised. While FISA had proven to be an important tool pre-9/11, some modifications were necessary, and were in fact made to FISA, to respond to the new threat posed by al Qaeda. In fact, FISA has been amended a great many times to update the law, and still additional changes may be necessary. The federal government has a duty to pursue al Qaeda and other enemies of the United States with all available tools, including the use of electronic surveillance, to thwart future attacks on the U.S. and to destroy the enemy. But while the President possesses the inherent authority to engage in electronic surveillance of the enemy outside the country, Congress possesses the authority to regulate such surveillance within the U.S. And Congress did, in fact, act to occupy that field when it passed FISA and explicitly stated in law that FISA and our existing criminal wiretap statutes, both of which contain warrant requirements, provide the sole authority for electronic surveillance of Americans on U.S. soil.

FISA has proven to serve as an efficient tool for law enforcement. Indeed, the Department of Justice recently reported that in the last year, 2,176 FISA applications were approved, with only one rejected, in part, by the FISA Court. Since 2001, only four requests have been denied. The law also provides flexibility to ensure that imminent attacks can be thwarted by permitting the initiation of electronic surveillance in emergencies where there is not adequate time to first go to the FISA court.

Since the law is crystal clear and has largely proven to be effective, the President has no basis or authority to operate around it. The President, however, has argued that the Authorization for Use of Military Force (AUMF) provided him with such authority to engage in warrantless electronic surveillance of Americans. It is hard to believe that any of us in Congress contemplated – when we voted to authorize the use of force to root out the terrorists who attacked us on September 11th – that we were also voting to nullify FISA to permit spying on Americans without warrant.

more...