ACLU: FISA Must Not Be Gutted Under Pretext of "Modernization," President Must Show Respect for Rule of Law

July 26, 2006 12:00 am

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WASHINGTON – As the Senate Judiciary Committee met to examine the issue of “modernizing” the Foreign Intelligence Surveillance Act (FISA), the American Civil Liberties Union urged Congress to reject attempts to further erode the Fourth Amendment and its protections. Since President Bush authorized the warrantless wiretapping and data-mining of Americans by the National Security Agency in 2001, FISA has been constantly violated.

“Lawmakers want to reward the president for disregarding the rule of law,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “FISA has already been amended numerous times. FISA doesn’t need to be modernized – it needs to be followed. And Congress needs to carry out its constitutional duty to hold the executive branch accountable.”

FISA has already undergone far-reaching “modernization.” During the initial passage and reauthorization of the Patriot Act, Congress amended FISA extensively, much to the detriment of the law’s original civil liberties protections. The ACLU noted that the Bush administration had been secretly wiretapping Americans without a court order during both Patriot Act debates – in 2001 and 2006 – even as Congress expanded the ability of law enforcement to get warrants to conduct electronic surveillance of Americans.

The White House has stonewalled congressional attempts to investigate the administration’s circumvention of FISA. President Bush personally blocked an investigation by the Justice Department regarding the NSA’s warrantless wiretapping program. Although Congress lacks a full understanding of the facts, several bills have been introduced that would reward the government’s illegal actions by changing the law to legitimize the programs.

The ACLU has raised strong objections to S. 2453, the National Security Surveillance Act. This Cheney-Specter bill would make complying with FISA and the Fourth Amendment optional for the president. The bill would also vastly expand the government’s ability to conduct warrantless surveillance and physical searches of Americans’ homes and businesses without judicial check. It would allow the administration’s data-mining of Americans’ private information to continue without any independent judicial check. The bill would also deny Americans the right to bring a case challenging their surveillance before a fair and independent court.

Representatives Heather Wilson (R-NM), Jim Sensenbrenner (R-WI) and Pete Hoekstra (R-MI) have introduced a strikingly similar bill, HR 5825, in the House. That proposal, termed the “NSA WiSH bill” by the ACLU, would severely undermine the Fourth Amendment and give the president unprecedented power to conduct warrantless spying and physical searches of Americans on American soil, even if that individual is not conspiring with al Qaeda.

“These proposed changes ignore the very reasons FISA was enacted in the first place,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. “President Nixon had ordered warrantless wiretapping of Americans and claimed that he was above the law. History – and current events – shows us that FISA is still needed to protect our Fourth Amendment rights. Congress should not weaken those protections.”

For more on the ACLU’s concerns with the NSA warrantless surveillance program, go to:

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