Protect America Act is Unconstitutional

Some people say that I'm too easy on the Democrats. My answer is, well, you have to pick your battles. The current situation demands a solid Democratic opposition to the current administration and the conservative Republicans in Washington. You don't douse the burning trash can when your house is on fire. Right?

That was then, this is now. This past weekend, in a rush to get to their summer homes, 16 Democrats Senators and 41 Democratic House members voted for the Protect America Act which amends the previous Foreign Intelligence Surveillance Act of 1978. The new law is designed to enhance our national security, but key provisions violate the very core of the Fourth Amendment. In 1978 we were still under the threat of nuclear holocaust courtesy of the Soviet Union, yet that was the year Congress passed a bill that at least provided some oversight into wire tapping, with some sort of paper trail. But the fear has been whipped up for so long that those Democrats who voted for this bill are willing to shirk their fidelity to the principles of the constitution. The last thing the Democrats should be doing right now is expanding President Bush’s unchecked executive powers.

Marty Lederman at balkinization breaks it down for us:

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

The key term, obviously, is "directed at." The bill includes no definition of it.

So if the primary target of the spying is not the person in the U.S., there is no need for judicial oversight of the surveillance. That means no official records, and no accountability for politically motivated eavesdropping -- the very reasons why the secret FISA court was created in the first place. Does the name Richard Nixon ring any warning bells with you? Would you trust Attorney General Alberto Gonzales to decide who is calling from outside the United States, let alone connected to terrorism? I think we all need to get more involved with pushing this Democratic Congress to fix this law before long before it's set to expire in 6 months. We all need to get more involved with writing our representatives. Our liberties are being taken for granted and we need to wake people up before it's too late.

Comments

[Don Adams]

On the practical issue, I agree wholeheartedly. The Republican Congress was all in favor of turning our liberal democracy into Republican One-Party Rule. Our votes and the extent to which those elected listen to our opinions are the main tools we have to preserve democracy (and a substantial component of what it is to have a democratic society).

The theoretical issues are also extremely important. On the one hand, ASSUMING that our government still has the fundamental goal of securing “the Blessings of Liberty to ourselves and our Posterity,” increased secret surveillance must be a continual worry. It is endemic to the modern nation-state. The classic dispute between the German philosophers Johann Gottlieb Fichte (1762-1814) and Georg Wilhelm Friedrich Hegel (1770-1831) set the basic issues. Fichte argued that because liberty needed to be protected or it would be lost, a free population needed a system of national identification in which every citizen would be required to carry official ID papers, and any police officer had the right to stop any citizen in public (not in private homes) to find out what their business was (Grundlagen des Naturrechts (Science of Rights), 1796; page 298 of the Kroeger edition). Hegel pointed out two logical problems with this. (1) In this case “Fichte’s whole state is police” (Vorlesungen uber Rechtsphilosophie volume iv, p.617 of the Ilting edition). What was a free population becomes a controlled population. (2) If liberty and rights must be protected against abuse by a meta-class, a separate set of individuals charged with the responsibility of protecting the liberty of the primary set of individuals, then the meta-class will itself need a meta-class, i.e. we need a meta-meta-class (same citation). Who will police the police? This sets up an infinite regress which is acceptable only in mathematics, not in practical life. The only solution, according to Hegel, is a continually delicate and changing balance whose basic principle is that “the universal should be essentially not external, but an inward, immanent end, the activity of individuals themselves” (Wood’s translation on page 451 of his edition of Hegel’s Philosophy of Right). In other words, if the people are to give themselves the law, if this is true democracy — government of the people, by the people and for the people — then the preservation of public order must depend primarily on the public itself. This means, among other things, continual public oversight of all government actions; the government must perpetually be accountable for its actions to the public.

The BIG PROBLEM is that the more we go in Fichte’s direction, the more immune from public accountability the police power of the state becomes, the less it will be true that the government still has the fundamental goal of securing “the Blessings of Liberty to ourselves and our Posterity.” Increased immunity from public accountability shifts the focus of the community from government of the people, by the people and for the people, to government of the people by and for whomever controls the police power. If the aim is not public, then the aim is necessarily private. This lands us right back in the situation which provoked the Revolutionary War.

The stakes are high.

[Ralph DeMarco]

Thanks Don, great comment. I agree with your points. What we need to keep in mind is how liberal democratic republics like Italy and Germany evolved into fascist states. It didn't happen over night. They used fear, murder and emotional appeals to patriotism in order to destroy all opposition. It seems to me that once you pack the judicial and legal systems with partisan ideologues who have little regard for the Constitution, all bets are off. When political and economic power becomes more important than principles, we are all in deep, deep trouble. When money is considered free speech, and elections are manipulated by partisan state officials, the basic foundation of representative government is destroyed. And since most people in this country are easily manipulated by fear mongering, don't care about politics, don't know anything about Constitutional law, and rely soley on corporate news to get their information, it will be very hard to stop them. This has lead Heather and I to think that, perhaps, democracy and corporate capitalism are incompatible. I don't know if that's the case, but I'm beginning to feel that way more and more. Depressing.

[Don Adams]

Yes, absolutely. Let me give you a humble example. I buy my soda not at the grocery store, but at a little soda shack which makes all its own flavors ("Hosmer Mountain Soda" in Connecticut; http://www.hosmersoda.com/). The owner has recently started a petition to lobby the state legislature to reserve a certain portion of large contracts in the state to small businesses (unfortunately the petition is not online). E.g. Hosmer is completely shut out of UConn because Coke and Pepsi have enough clout to secure exclusive contracts. That's corporate capitalism at work. If you let success succeed, then winners win bigger and bigger. As Ray Charles said, "them that's got are them that gets, and I ain't got nothin' yet." Entrepreneurial capitalism emphasizes the importance of allowing people to create their own welfare as opposed to allowing people's welfare to depend on the decisions of others (e.g. whether or not profits can be increased by outsourcing or moving the plant to a country where labor is cheaper). I still have worries about the compatibility of entrepreneurial capitalism and democracy, but the corporate capitalism of the Bush Administration is profoundly destructive of "little guys."

And of course here is where your point makes this so much worse: the cout which huge corporations have to skew competition in the economic realm is allowed to translate into the political realm when $ = speech, and when a corporation = a legal person.