INTELLIGENCE ABUSES AND THE FISA AMENDMENTS ACT
"The history of the Intelligence Community is replete with instances of
abuse of civil liberties," observed Lt. Gen. James R. Clapper last year
in the course of his confirmation as Under Secretary of Defense for
Intelligence.
That is not news, of course, though it is useful to have it
acknowledged by the Pentagon's senior intelligence policy official.
Also useful is Gen. Clapper's proposed remedy:
"The requisite elements of a program to prevent such abuse are: (1)
clearly articulated and widely publicized policies; (2) training, both
basic and refresher; and (3) a mechanism to verify compliance
independently," he wrote in reply to a question from Sen. Carl Levin.
By these standards, the pending amendment to the Foreign Intelligence
Surveillance Act that is being considered by the Senate today leaves
much to be desired.
Far from being "clearly articulated," the legislation leaves even
experts uncertain as to what its provisions mean. And by granting
retroactive immunity to telephone companies for unspecified illegal
acts that they may have committed, the legislation compromises the most
important mechanism for independent verification of legal compliance,
namely the judicial process.
"Does the new FISA bill authorize wholesale interception of all
communications to and from the US," asked James X. Dempsey of the
Center for Democracy and Technology, "or does it only authorize the
interception of the communications of particular individuals?"
Incredibly, the answer is not reliably known. "Both national security
and civil liberties interests weigh in favor of clarity on this
question," Mr. Dempsey wrote last month.
http://blog.cdt.org/2008/06/25/does-target...vacuum-cleaner/Meanwhile, the congressional grant of immunity to telephone companies
that are being sued for suspected acts of illegal surveillance under
the President's warrantless surveillance program "is a naked intrusion
into ongoing litigation," said Sen. Sheldon Whitehouse (D-RI) on the
Senate floor yesterday.
http://www.fas.org/irp/congress/2008_cr/fisa070808.html"I am aware of no precedent for the Congress of the United States
stepping into ongoing litigation, choosing a winner and a loser,
allowing no alternative remedy," he said.
"I believe it will be determined by a court that ultimately this
section of the legislation is unconstitutional, in violation of the
separation of powers, because we may not, as a Congress, take away the
access of the people of this country to constitutional determinations
heard by the courts of this country."
"If I were a litigant, I would challenge the constitutionality of the
immunity provisions of this statute, and I would expect a good chance
of winning," Sen. Whitehouse said.