ACLU Urges House Intelligence Committee to Protect Fourth Amendment, Says FISA Must Not Be Gutted in the Name of "Modernization"

July 19, 2006 12:00 am

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WASHINGTON – As the House Permanent Select Committee on Intelligence met to consider the “modernization” of the Foreign Intelligence Surveillance Act, the American Civil Liberties Union urged members of the panel to reject attempts to further erode the Fourth Amendment protections of ordinary Americans. That law has been constantly violated since President Bush in 2001 authorized the warrantless wiretapping and data-mining of Americans by the National Security Agency.

“We must not repeat the mistakes of the past,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “America must not forget the circumstances under which FISA was enacted. President Nixon had ordered warrantless wiretapping of Americans and claimed that he was above the law. FISA does not need to be further ‘modernized’; the president simply needs to comply with law and the Constitution.”

Congress has already taken extraordinary steps to modify FISA. Much of the debate surrounding the initial passage and reauthorization of the Patriot Act focused on “modernizing” FISA, to the detriment of FISA’s original civil liberties protections. Ironically, despite significant changes made to make it easier for law enforcement to seek warrants to conduct surveillance, the Bush administration – the main proponent of those changes — has been secretly wiretapping Americans without a court order since 2001.

The ACLU endorsed two bipartisan bills that would curtail the administration’s abuse of power. H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act (LISTEN Act),” reinforces the requirement that the president must follow FISA and criminal wiretap rules as the “exclusive” procedures for wiretapping Americans in this country. H.R. 4976, the “NSA Oversight Support Act,” also reinforces the legitimate and necessary role of Congress as a check on any president, by requiring additional and prompt reporting to Congress of all secret surveillance of Americans.

The ACLU also raised strong objections to S. 2453, the National Security Surveillance Act. This Cheney-Specter bill would give the president the option of complying or not complying with FISA and the protections of the Fourth Amendment. The bill would vastly expand the government’s ability to data-mine the private information of ordinary Americans without cause and without an independent judicial check.

Such steps would repeat history’s mistakes and re-establish the conditions that led to FISA’s passage in the first place. Thirty years ago, Senator Frank Church (D-ID) warned that Congress must protect against the NSA’s potential technology that “could be turned around on the American people, and no American would have any privacy left. Such is the capacity to monitor everything: telephone conversations, telegrams, it doesn’t matter.”

“By law, Congress must be apprised of the nation’s intelligence activities, a requirement that this president violated,” said Timothy Sparapani, an ACLU Legislative Counsel. “Congress must not reward deceit and subterfuge by authorizing the very programs that have violated the law. To ‘modernize’ FISA as the Cheney-Specter bill proposes would shred the Fourth Amendment’s protections.”

The ACLU’s letter to the House Permanent Select Committee on Intelligence can be found at: www.aclu.org/safefree/nsaspying/26164leg20060717.html

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