Wiretaps that Work
Wiretaps that Work
Congress must ensure that domestic surveillance serves our national security needs in a manner consistent with constitutional rights.
The Senate Select Intelligence Committee holds a meeting today entitled “Intelligence Matters.” This follows on the heels of House Judiciary Committee and the House Permanent Select Committee on Intelligence hearings regarding proposals to amend the Foreign Intelligence Surveillance Act (FISA) – the law that regulates the use of electronic surveillance for foreign intelligence purposes within the United States. Some of these proposals are designed not to improve the law but to gut it. The proposals are both unnecessary and unwise.
For 40 years, FISA has provided a legal framework that enables the government to gather critical intelligence in a manner consistent with constitutional rights and the rule of law. Under FISA, the government may conduct electronic surveillance in the United States only if it can demonstrate to a special, secret court that it has probable cause to believe that the target of the surveillance is a terrorist or spy. The law also contains exceptions that allow the President to conduct surveillance for specified periods of time in emergency situations.
Regrettably, President Bush decided in the weeks following 9/11 that these critical legal safeguards are no longer necessary, and authorized a warrantless eavesdropping program that does not comply with them.
Few members of Congress have even been briefed on the program, but that has not stopped some of the President’s congressional allies from seeking to authorize it. They have proposed amendments to FISA that would give the President a blank check to carry out domestic surveillance without any meaningful review by Congress or the courts.
Congress cannot responsibly determine whether or how to amend FISA without a thorough understanding of what the program does and why FISA cannot accommodate it. Leading members of the House and Senate Intelligence Committees, who have been briefed on the program, have said they see no reason why FISA is suddenly inadequate, and neither the president nor the authors of these bills have provided a satisfactory explanation as to why the changes they propose are necessary – let alone, constitutional. Congress cannot and must not legislate until they do so.
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