Was Congress' decision to pass amendments to the Foreign Intelligence Surveillance Act, which gave telecom companies immunity from any laws they may have violated while carrying out requests by the Bush Administration, a further erosion of individual liberties or a necessary way to ensure our nation's security? Of course it could be both. The question is whether this erosion is reasonable, or if its a simple power grab on the part of an ambitious executive branch.
In essence the bill stops any court proceedings underway to punish the telecom companies for their actions, so consider this a legislative and executive check on the judiciary.
A key problems faced by republics is how to balance the maximum extent of liberty while also providing for security, which is the central task of any government. Republics have to continually wrestle with this dilemma, and this is what we are currently doing.
I have no answers, but we may wish to cover this issue in class. Here's some background:
- The bill summary from Thomas.
- Bill overview by GovTrack.
- Bill overview by OpenCongress.
The ACLU plans a lawsuit and lists the problems it sees with the bill. Here is a key complaint: [FISA] permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.
This is a 4th Amendment issue. The ability of the people to control the investigatory powers of government by ensuring that searches are limited by a warrant issued by the judiciary is seemingly negated when the president wants it to be negated. Is this an appropriate way to address a new kind of threat or the typical way that executives grab power? The irony is that this legislation was originally passed in the wake of abuses by the Nixon Administration when domestic spying focused on political organizations. The system was designed to allow for the secrecy necessary to investigate national security matters, but not domestic politics. The question asked is how do we know this restriction is still in place?
Central to this dispute is the role of the Foreign Intelligence Surveillance Court. This report prepared by the Congressional Research Service helps outline the court.
