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Stopping the Blank Check on Warrantless Spying

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Last summer, the Bush administration launched a propaganda campaign to try to frighten Congress into believing that if we failed to pass its domestic surveillance legislation -- the so-called "Protect America Act" -- the United States would miss critical intelligence that might prevent a terrorist attack that could be imminent.

In reality, the Foreign Intelligence Surveillance Act (FISA) -- created in 1978 to be the exclusive means by which the government collected foreign intelligence -- only needed modest adjustments: a clarification that any communications between foreigners that happened to pass through U.S. telecommunications switches could be collected without the need to get a court order and to reaffirm the protections of U.S. persons against warrantless search and seizure.

Instead of making these changes, the administration got what it wanted. Congress, in haste and in fear unfortunately passed unconstitutional legislation that gave the government a blank check to spy on anyone, any time, any where, with little oversight from the courts or Congress.

I voted against the bill and argued that we must do better. In passing the RESTORE Act, I am pleased the House of Representatives has done so.

Yesterday, the House of Representatives passed legislation to restore the protections for individual rights that were not contained in the "Protect America Act" while providing the Intelligence Community with the tools it needs to conduct surveillance of those who would do America harm.

Since August, I have fought hard to ensure that Congress gets it right this time. We have passed a bill that gives our citizens the best protection we can provide them: good intelligence collection against our adversaries and court protection against an executive branch that could seize and search the communications of its own citizens without cause.

Specifically, I worked to include language to:

  • Ensure that the government must have an individualized, particularized court-approved warrant based on probable cause in order to read or listen to the communications of an American citizen.
  • Require the Court to review and approve not only the procedures and guidelines required under this Act, but also the application of those guidelines.
  • Require the Bush administration to "fully inform" Congress on all surveillance programs conducted since 9/11.
  • Increase the number of Foreign Intelligence Surveillance Court (FISC) judges from 11 to 15, provide additional personnel to both the FISC and government agencies responsible for making and processing FISA applications, create an electronic filing, sharing, and document management system for handling this highly classified data, and mandate training for all government personnel involved in the FISA process.
  • Clarify that the Foreign Intelligence Surveillance Act (FISA) is the sole statutory basis for domestic surveillance.

The RESTORE Act now makes clear that it is the courts -- and not an executive branch political appointee -- who decide whether or not the communications of an American can be seized and searched, and that such seizures and searches must be done pursuant to a court order. Every Member of Congress can tell each of our constituents, "You have the individual protection of the court."

Restoring the role of the courts is important not only to protect the individual rights contained in the Fourth Amendment to the Constitution. This bill will, by applying checks and balances, keep our intelligence community strong and improve intelligence collection and analysis. It has been demonstrated that when officials must establish before a court that they have reason to intercept communications -- that is, that they know what they are doing -- we get better intelligence than through indiscriminate collection and fishing expeditions.

Too often -- in a variety of recent bills -- we in the House have allowed our expectations of what the Senate will do, how they will produce weaker legislation, or what the president will veto to lead us to pass our own inferior legislation. I continually argue against that approach. This FISA update legislation could have been another bad example, but we at the last minute avoided that mistake. Let's see what the Senate and the president now do.