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Demanding the Truth About FISA


A government of the people, for the people, and by the people can't survive if it is shrouded in secrecy from the people.

As the 110th Congress wrapped up its first session with every member raring to get away for August recess, the Bush administration bullied a Democratically- controlled Congress into passing a law that amends the Foreign Intelligence Surveillance Act (FISA) to give the executive branch even more power to spy on Americans without a court warrant. And a spineless Congress caved.

Congressional leadership ought to stop being so timid and start standing up to the Bush administration. The legislature had the power to stop the cynically-named "Protect America Act of 2007" from ever reaching the president's desk. Instead, they handed Bush, Cheney and Gonzales exactly what they wanted.

The new law allows the executive to eavesdrop on Americans' international calls and intercept international emails without individualized warrants and without individualized suspicion, as long as its "target" is someone "reasonably believed" to be outside the United States. And the power to make that determination is vested in the hands of Attorney General Alberto Gonzales and Director of National Intelligence Mike McConnell -- even though this attorney general in particular will go down in history as one of the worst from a civil liberties perspective. How the Democrats -- and even Republicans -- could vest more power in Alberto Gonzales is a question to which I have a hard time even imagining an answer.

The law was passed in the waning hours of the session with Patriot Act-like haste and in a factual vacuum, since, to this day, no one outside the government knows the details or the extent of the NSA's warrantless spying on Americans over the past six years.

Speaker Pelosi says Congress should revisit the law sooner than its 180-day expiration. Whether they will do anything remains to be seen. In the meantime, the ACLU has taken action on another front in an effort to get crucial information to the American public so that we can have an informed, meaningful debate about this issue. We're not simply going to wait and see if Congress finds the backbone to stand up to the Bush administration.

Under the Foreign Intelligence Surveillance Court's (FISC) rules, an individual or public entity may petition the court to release spying orders and other material, subject to reasonable redaction of properly classified information. The FISC has released important legal orders in the past, particularly when asked to do so by members of Congress. But to our knowledge, ours is the first such request from members of the public.

In legal papers filed this week, we asked the FISC to disclose its recent legal opinions and orders that address the scope of the government's surveillance authority since the NSA spying program was put under FISC review in January, with only those redactions essential to protect information that the court determines to be properly classified.

We must decide what kind of country we want America to be. Are we a country that allows fear and vague threats to browbeat our leaders in Congress into passing laws that go against our values and violate our Constitution?

The answer, of course, should be no. The new law is not about protecting us from terrorism. It's about cutting legal corners and giving more power to the executive branch, with the attorney general and director of national intelligence deciding, on their own, to intercept any American's international phone calls or emails, so long as the "target" of the surveillance is overseas. There isn't even a requirement that someone on the call is suspected of terrorism.

This fundamentally flawed legislation was passed with appallingly minimal deliberation. In the almost six years since 9/11, the Bush administration never publicly claimed that this change was necessary.

Then suddenly, with a congressional election looming, it was all hands on deck. Without presenting facts to back his claim, House Majority Leader John Boehner declared that the FISC had secretly issued an order that halted eavesdropping on "foreign-to-foreign" conversations (communications between parties outside the U.S.) if the calls or emails passed electronically through American networks - a common occurrence today.

The president and vice president capitalized on Boehner's statement, using Patriot Act tactics. "Give us more power," went their argument, "or the next attack is on your heads." To their shame, a majority of Congress -- including many weak-kneed Democrats -- caved.

The new law, in fact, doesn't merely clear the way for the warrantless interception of overseas exchanges that pass through American data nodes. It vastly expands the executive's power to spy on Americans without any meaningful judicial oversight or showing of suspicion. And because it's all done in secret, a person being spied upon would have no way of ever finding out.

What's more, everyone involved in this legislative drama, even the Intelligence Committee members, were working with veiled and incomplete information about this program. Attorney General Alberto Gonzales and FBI Director Robert Mueller have directly contradicted each other in sworn testimony before Congress. And the president refuses to tell the American people the truth.

The law provides for a six-month "sunset," but the Bush administration, most notably Vice President Dick Cheney, has said it should be made permanent. One can only hope that the congressional leadership will find a way to stiffen its spine -- even if the sunset debate does take place during the height of the presidential primary season.

But Congress also needs information to fulfill its legislative responsibilities -- clear, unambiguous, and consistent information. What we know now about NSA spying is unclear, ambiguous and internally inconsistent.

There is one thing that we do know for sure. Since the program became public, the Bush administration has dissembled, fear-mongered, and lied to keep the truth about warrantless NSA spying from the American people.

To quote the late Supreme Court Justice Louis Brandeis, "sunshine is the best disinfectant." The Bush administration's track record for secrecy and misinformation demands a little cleansing sunshine. We hope the Foreign Intelligence Surveillance Court will grant the ACLU's request and release records that provide the American people -- especially our representatives in Congress -- with exactly that.