Declaring war on the Constitution?

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The Cheney-Specter National Security Surveillance Act of 2006 (S.2453) constitutes a virtual declaration of war on the Constitution. It would mutilate constitutionally protected privacy, cripple checks and balances, and inhibit political dissent. The bill's profoundly anti-constitutional philosophy is that "trust the president" should be the measure of our civil liberties.

The Fourth Amendment protects American citizens from unreasonable searches and seizures, i.e., the right to be left alone unless the government can demonstrate a strong law enforcement or intelligence need to a neutral magistrate. Its centerpiece is particularized suspicion. The government is not permitted to search willy-nilly in the hope that something may turn up. If that were not the case, the police could ransack every household in America on the theory that at least a handful will reveal evidence of crime. The amendment was not motivated by sympathy for criminals or enemy terrorists, however, but from recognition that a police state exposes citizens to harassment or retaliation for voicing dissent or being personally obnoxious to government officials. Without the amendment, citizens would be soon cowed into docility.

The Cheney-Specter bill promotes that evil. It would authorize the NSA to intercept all e-mails or international communications of Americans without warrants. It would authorize data mining that informs the government of the parties to every phone call made in the United States without warrants. It would give congressional endorsement to the theory that the president enjoys inherent constitutional power to ignore any federal statute regulating the collection of foreign intelligence, including prohibitions on mail openings, torture or breaking and entering homes. And the bill would authorize unprecedented program warrants to conduct electronic surveillance against Americans without any suspicion that the individual targets are implicated in terrorism or other wrongdoing.

The Constitution, of course, is not a suicide pact. Congress and the president have collaborated to enact the Foreign Intelligence Surveillance Act (FISA), amended on six occasions since September 11, 2001 to endow the commander in chief with muscular authority to gather foreign intelligence against al Qaeda or other enemies of the United States. The National Security Agency (NSA) may target suspected terrorists abroad for electronic surveillance or physical searches without judicial warrants. If a terrorist calls an American citizen in the United States, the NSA is not required to hang up. The United States Supreme Court has held that aliens abroad are unprotected by the Fourth Amendment. For 15 days after war commences, electronic surveillance of Americans in the United States does not require a warrant. Nor is one required for up to 72 hours in cases of emergency.

In sum, all but a tiny crumb of foreign intelligence is assembled without FISA or constitutional constraints. And not a scrap of evidence suggests September 11 might have been averted in the absence of FISA.

The statute regulates the president's authority to target American citizens on American soil for electronic surveillance or physical searches. The NSA must obtain a warrant from the Foreign Intelligence Surveillance Court based on probable cause to believe the American target is implicated in international terrorism or activity on behalf of a foreign nation or foreign terrorist organization. Moreover, so-called "minimization" procedures must be followed to ensure that the inadvertently intercepted, innocuous communications of non-suspect Americans are destroyed. Big Brother files on every American citizen would dampen dissent by engendering fear of government retaliation through leaks or otherwise. Think of the message sent by the Bush administration's covert efforts to discredit Ambassador Joseph Wilson over Iraq's suspected initiative to purchase uranium from Niger.

As recently as July 31, 2002, President Bush's Department of Justice testified before the Senate Intelligence Committee that FISA was nimble and effective in combating terrorism. The department opposed a proposal by Sen. Mike DeWine, Ohio Republican, to relax the standards needed to obtain a warrant.

Unknown to the committee, President Bush had been flouting FISA since the immediate aftermath of September 11 by targeting American citizens for electronic surveillance on his say-so alone. The president hoped to keep the NSA's illegal domestic spying secret forever by refusing to inform Congress or the American people. That ambition was foiled last December by the New York Times after apparent leaks from the executive branch. The attorney general has conceded other secret spying programs that have not yet leaked. But as father of the Constitution, James Madison admonished, popular government without popular information or the means of acquiring it is a farce. Further, no evidence has been forthcoming from the White House showing that violating FISA for five years has yielded much if any useful foreign intelligence.

The Cheney-Specter bill turns the wisdom that the Constitution is not a suicide pact into the folly that the Constitution is whatever the president says it is. And the folly is compounded by the convincing evidence that the bill will accomplish nothing non-trivial to defeat international terrorism.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.