Guest Blogger: Warrantless Surveillance Legislative Developments
On Thursday evening, both the Senate Judiciary Committee and the House of Representatives passed their versions of legislation aimed at correcting the Protect America Act (PAA), the law rushed through Congress in August that eviscerated provisions of the Foreign Intelligence Surveillance Act (FISA) that had stood as a bulwark against unaccountable unlimited warrantless surveillance. The PAA gave the government broad powers to monitor Americans' telephone and email communications on any subject with any person located overseas without first obtaining a warrant – in violation of the Fourth Amendment's prohibition on warrantless searches.
Both corrective measures – the Senate Judiciary bill and the House’s RESTORE Act – are an improvement over the PAA, and neither gives retroactive immunity to the telecommunications companies that aided the Bush administration’s warrantless wiretapping program.
This places the Senate Judiciary Committee bill at odds with legislation passed by the Senate Intelligence Committee, which was brokered in a deal with the White House. The Intelligence Committee bill gives blanket immunity to the telecoms that illegally provided our phone call information to the Bush administration. It also falls short by failing to provide oversight of the administration's wiretapping program.
Unfortunately, the Intelligence Committee bill may be the legislative vehicle that moves on the Senate floor, with the Judiciary Committee bill treated as a proposed amendment. The White House is expected to fight hard to get an unreconstructed Intelligence Committee bill passed by the Senate, and the administration has threatened a veto any bill unless it provides for telecom immunity and allows the government to monitor Americans’ communications without an individualized warrant.
While neither the Senate bills nor the RESTORE Act appear to pass constitutional muster, the Senate Judiciary and House bills do a better job of protecting Americans’ rights.
If the White House lives up to its threat and vetoes the final bill, lawmakers should simply allow the PAA to expire in February and move on to other business. FISA already gives the government all of the powers it needs to spy on those who would do us harm. Clearly the president wants greater powers to spy on Americans – in violation of the Constitution – and Congress must stand firm in defending the rights of the American people.