07/03/2008 05:12 am ET Updated May 25, 2011

Congress Abandons the Fight for Liberty and Privacy

Finding the right balance between liberty and security has never been easy. But America's leaders must always remember that they are defending a free society. The people's liberties are not to be traded away for a mess of pottage.

Unfortunately, 9/11 provided the executive branch with an opportunity to cloak a massive power grab in the guise of preventing another terrorist attack. In fact, the federal government already possessed sufficient power to provide for a secure America. The attacks on 9/11 happened because officials did not competently use the authority they had, not because they were helpless in the face of evil.

The Patriot Act, legislation that I quickly came to regret having supported, is one example of Congress mistakenly increasing presidential authority. Another example is the pending amendments to the Foreign Intelligence Surveillance Act.

FISA, first passed in 1978, was a compromise with liberty from the start. In order to expedite surveillance targeted abroad, Congress created special courts to hear warrant applications. The FISA Court received hundreds of applications every year; not until 2003 were any warrants denied--just four out of the 1727 requested.

As more international calls were routed through the U.S., FISA required updating. Instead, the president chose to ignore the law. Arguing that his powers as 'commander in chief' transcended the constitutional authority of Congress, President George W. Bush directed the National Security Agency to spy on U.S. citizens.

Given the facts that the war is open-ended--when will terrorism actually be "defeated"?--and that the American homeland is a battlefield, the president essentially claimed to possess unlimited power. The Republican Congress simply went along. When it came to oversight of the executive, GOP legislators acted in unison, supporting their political party over our liberty.

Unfortunately, the Democratic Congress has been little better. As is evident from the leadership's decision to surrender to the administration and approve a FISA "compromise" that allows the president to keep these unnecessary and dangerous powers.

The bipartisan measure would allow the government to listen to millions of phone calls by Americans without an individualized warrant and based on nothing more than a belief that one party to a phone call or an e-mail is located in another country. Surely the Constitution demands some accountability for the executive branch.

The law would offer greater protection when a particular American was expressly targeted, but even then the proposed rules fall short of the Fourth Amendment's requirements. The Constitution's protection against unreasonable search and seizure is part of our nation's freedom foundation, not superfluous verbiage.

Moreover, the FISA amendments would immunize telephone companies from law-breaking, protecting them against lawsuits for helping the government conduct warrantless searches. Past cases would be dismissed. So much for expecting people to obey America's fundamental law.

I'm a former U.S. Attorney, and I believed it when conservatives said, "you do the crime, you do the time." But that's obviously no longer the case. If you violate the Fourth Amendment rights of the American people, you can count on a bipartisan amnesty.

Of course, some congressional Democrats would have us believe that they are really on the side of the Constitution, but they say they don't want to risk opposing the Bush administration on this issue. How is that any better than the Republicans who hug the president for political gain?

The individual liberty of Americans is not a political football to be tossed to and fro before an approaching election. Lawmakers of both parties have a duty to defend the Constitution, even if doing so is politically unpopular. If they don't want to live up to their oath to uphold the Constitution, they should find other work.

Advocates of abandoning the Constitution say that we live in a dangerous world. But so did the early Americans. The nation's Founders nevertheless created a Constitution that limited government power and protected individual liberty. We should follow the same Constitution today.