In the waning hours before August recess, Congress passed a change to the law governing the Bush Administration's wiretapping program. This move, which I opposed, came only after the President chose politics over policy, negating a carefully negotiated deal between Republicans and Democrats in exchange for an overreaching, highly controversial and divisive proposal.
Back in July, a federal intelligence court judge declared an element of the Administration’s wiretapping efforts illegal. The decision concluded that the U.S. government could not monitor communications between two locations overseas that are passed through routing stations in the United States. Specifically, the court ruled that such actions were never approved by Congress or authorized under the Foreign Intelligence Surveillance Act (FISA). It further stated that the Administration overreached in its authority to conduct such surveillance operations. The effect of the ruling has been that the National Security Agency (NSA) could not collect information from foreign calls and emails that pass through U.S. communications routes. Congress needed to take action to restore this authority, but the way in which to do that was up for debate.
Since that ruling, Members of the Intelligence Committees in Congress worked with the Director of National Intelligence (DNI) to draft legislation to close the collection gap while safeguarding Americans against unnecessary government intrusion. Two competing bills were offered, one, an Administration wish-list bill (S. 1927) that ignored the Fourth Amendment, trampling American civil liberties and the other, a more thoughtful, balanced and bipartisan alternative (H.R. 3356) that I supported.
S. 1927, which Congress ended up passing, updates FISA by eliminating the collection gap without the need to obtain warrants, provided that “foreign intelligence information” is at stake rather than domestic information. Effectively, this language will allow the Administration to monitor international phone calls and e-mails as long as it involves “foreign intelligence”, not just terrorism, and it can monitor U.S. citizens or residents without warrant or real judicial oversight. This broad authority encourages government intrusion on Americans’ lives and I believe it is an unconstitutional extension of power to the executive branch.
The more balanced, bipartisan alternative (H.R. 3356) required individual warrants for surveillance directed at U.S. citizens, required the Attorney General to submit procedures for international surveillance to the intelligence court for approval, and provided oversight by requiring the Inspector General in the Department of Justice to conduct an audit every 60 days of intercepted communications. This compromise legislation would have fixed the collection gap without encroaching needlessly on the rights of U.S. citizens.
Unfortunately, under a Presidential veto warning and not so thinly veiled threats that the Administration would launch political attacks if their preferred measure was not passed, S. 1927 was enacted. Due to civil liberties concerns, the bill does contain a six month sunset provision, meaning it will expire in February. Speaker Pelosi and other leaders in Congress have vowed to revisit this issue well before then.
The Constitution is a sacred document. When we steamroll the protections it guarantees in the name of security, we erode our own freedoms and in the long run, become less safe as a nation. I will be urging the Democratic Leadership to take this issue head on when Congress returns to session in September.