Responding to the second of ACLU’s alerts on behind-the-scenes maneuvering by the Bush Administration with the U.S. House of Representatives leadership on changes to FISA, I recycled my previous letters into this soporific mash-up to my Representative and the House Majority Leader & Speaker.
As you know from my previous correspondence on the issue, I oppose weakening the privacy protections for U.S. citizens in the Foreign Intelligence Surveillance Act (FISA) without compensatory accountability mechanisms. I understand that the Bush Administration is now engaged in “backroom” negotiations with the U.S. House of Representatives leadership to change FISA once again.
While I support strong protective national security measures as part of a holistic approach to combat terrorism, I, like the majority of American voters (as documented in the Mellman Group telephone poll), stand against any actions which violate fundamental American values and our national laws. As you are well aware, FISA regulates wiretaps involving U.S. citizens and provides a flexible judicial oversight mechanism for approving (even after the fact) surveillance through special classified courts. The NSA warrantless wiretapping program circumvented FISA. Congress should be exercising its Constitutional role as a check on executive power by vigorously investigating this violation of the law which was ordered by President Bush and which by precedent should be an impeachable offense, not retroactively rubber-stamping it by considering “compromise” legislation that grants retroactive immunity to the telecommunications providers who cooperated with the Bush Administration’s unconstitutional NSA wiretapping program.
At this time, two core principles must be observed above all else. First, we must affirm the rule of law by acknowledging and enforcing the principle that no person, not even the President of the United States, is above the law. FISA was violated. We should not grant anyone immunity but should instead aggressively investigate and see that justice is carried by holding accountable all those who have acted illegally.
Second, we must uphold the Constitutional principle of checks and balances. I have no doubt that clandestine surveillance is entirely necessary to protect innocent Americans. While I accept that in an era of global terrorism certain nonessential privacies and privileges may need to be foregone in order to enhance our security, I demand accountability from those who would diminish our freedoms. We must proceed in such a way to ensure that power is not centralized and abused. We must maintain mutual transparency whenever possible and accountability in all cases. No branch of government may be allowed to gather to itself unchecked power for whatever good purpose it may be initially intended. The framers of our Constitution clearly understood the inevitability of abuse of such unchecked power. FISA was drafted specifically to allow the executive branch to engage in intelligence gathering with necessary secrecy while at the same time enforcing appropriate judicial checks to prevent abuse. Checks and balances are an essential feature of our republic and must be preserved to protect us against the corruption that unmitigated authority inevitably brings with it. Given its technology-neutral applicability to any communications medium and the latitude it grants for ex post facto warrants, I see no compelling reason to amend FISA to allow additional unsupervised, classified, wiretapping authority. Any legislation Congress approves must include independent review of surveillance authority to protect this fundamental principle which undergirds the stability of our republican form of government.
As I expressed in my letter of 17-February-2008, I was pleased when the House of Representatives stood firm against the Administration in its attempt to weaken the protections in FISA. I ask you once again to stand your ground and carry out your duty to check executive power. Remembering that no one is above the law, reject any bill that puts at risk or terminates lawsuits against telecommunications companies, as such legal action may be the only avenue to justice for crimes that may have been committed by telephone and Internet companies who complied with the prima facia illegal NSA requests for such wiretaps. Remembering that the viability of our democrasy depends upon limited power enforced through checks and balances, reject any bill which does not enforce appropriate transparency, oversight, and accountability.