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FISA: Heritage’s Misleading Hyperbole And The Rule Of Law

The Senate schedule today is listed as follows:

10:00 a.m.: Convene and begin a period of morning business.

Thereafter, resume consideration of S. 2248, the FISA Amendments Act of 2007.

There are rumors about backroom negotiations between the GOP and Dem leadership wherein the GOP is offering consideration of some amendments — some at a 50 vote margin, some at a 60 vote margin, and some not considered at all. Mitch McConnell is again working to cover Dick Cheney’s ass while disrespecting the oversight and restraining role of his own balance of powers duties in the Senate — not exactly trustworthiness in action.  We’ll be watching along with everyone as events unfold this morning and bring you updates as we get them.

In what may be my most amusing moment in the FISA fight, the Heritage Foundation wet their Depends because Americans stood up in droves to say "enough!" to the lawbreaking disrespect of the Bush Administration and the rubber stamp obeisance of the Republicans in the Senate.  And Congress heard their message loud and clear.

Oh, the humanity.

Yes, my friends, the Heritage Foundation finds the idea of everyday Americans standing up for the rule of law and the principles of balance of powers and civil liberties to be "hysterical."   If you ask me, it’s simply patriotism, pure and simple, but then my mission in life isn’t providing cover for Dick Cheney’s behind. 

But, don’t take my word for this fight being the patriotic one.  Take Bruce Fein’s:

…In other words, it is the mental inclination of spies and the intelligence community to overreach because their job is to gather intelligence, their job is not to weigh and balance privacy interests. Privacy interests that Justice Louis D. Brandeis characterized in Olmstead v United States, the right to be left alone, the most comprehensive of rights, and the right most valued by civilized men.

Now, this committee was told by the attorney general on February 6th that we can all be assured because NSA professionals are deciding who is and who is not sympathetic to al Qaeda, that only the culprits are targeted. But the whole purpose of the fourth amendment, the whole purpose of FISA, was to have an outside check on the executive branch spying because of the inherent tension with the desire of the professional to get the maximum intelligence and the desire of the American people to be secure in their persons, houses, papers and effects. That is the reason why FISA was enacted and why it has demanded such scrupulous conformity over the years.

The argument is made that the authorization to use military force somehow overrode the FISA statute. On its face, it is preposterous, because the theory that the AUMF authorized the president to undertake anything pertinent to collecting foreign intelligence also meant that this committee and this Congress silently overrode the prohibitions on mail openings, on breaking and entering homes, on torture, cruel, inhumane, degrading treatment of prisoners, and to do all of those things in silence on its face is laughable.

Bruce Fein, former Reagan DOJ official isn’t enough? Try a slew of national security professionals courtesy of the ACLU:

David Kris, former Associate Deputy Attorney General dealing with national security issues for the Bush administration, 2000-2003 (“Legal Rationale for Spy Program Question,” Associated Press, 3/09/06)

“Claims that FISA simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to constitutional powers in ‘violation of the statute’”

Christopher Pyle, a former intelligence officer (“Checking big Brother,” American Prospect, 1/20/06)

“Whatever their excuse, one thing is clear: These domestic spies are eager to add to, not subtract from, their files and lists. If a suspect shares your name, you are likely to be stopped at the airport, rejected for employment, or denied a security clearance, over and over again. Unfortunately, there is no way to correct such an erroneous file, because the files are secret. And, even if the files of one agency could be corrected, the files of the hundreds, perhaps thousands, of other agencies on the network would still be infected. Years later, when the network is queried, the original error will come back as a hundredfold ‘truth,’ simply because so many agencies believe it.”

“The time has come to scale back this bloated system, before intelligence analysts drown in trivia, before the reputations of decent citizens are destroyed, and before the sheer scale of the spying intimidates Americans from ever questioning their government.”

There are reasons restraint is written into the law and why third party oversight is essential. The capability to surveil is an awesome and intrusive power, one that the state must exercise with care and always balance with some outside oversight as to whether there has been overreach. Otherwise, there is substantial risk of politically and personally directed abuse, which brought about the original FISA laws in the wake of the intelligence community being used to feed the Nixon Administration’s rampant paranoia.

National security must be balanced against civil liberties concerns.  Otherwise, we are merely another police state whose allegience is to the rampant whims of a unilateral executive rather than the steady application of the rule of law. 

This nation was founded by citizens who put their blood and their property on the line to fight for freedoms enshrined in the Declaration of Independence, the Constitution, and the Bill of Rights.  We owe the Founders more than superficial lip service — it is our duty as Americans to stand up for the rule of law and for liberty. 

(H/T to The Long Goodbye.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com