Civil Liberties: Restoring the Law

October 10th, 2007 - by admin

Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Ali Frick, and Jeremy Richmond / The Progress Report – 2007-10-10 22:56:44


WASHINGTON, DC (October 10, 2007) — Yesterday, House Judiciary Committee Chairman John Conyers (D-MI) and House Intelligence Committee Chairman Silvestre Reyes (D-TX) introduced the Restore Act, a bill aimed at bringing back into balance the need for security and liberty in the government’s surveillance efforts. Indeed, there is much to restore after the Bush administration and Congress swiftly eviscerated many of the central oversight and warrant requirements contained in the Foreign Intelligence Surveillance Act (FISA) with the passage of the Protect America Act (PAA) just prior to the August recess.

The PAA provided an “unnecessary and dangerous expansion of President Bush’s powers,” essentially allowing the administration to conduct temporary “oversight-free surveillance” on individuals who are not suspected of being terrorists.

The Restore Act is a “major step in the right direction” because it requires “that electronic surveillance programs be approved by the Foreign Intelligence Surveillance Act (FISA) Court,” mandates that “FISA warrants be obtained when the administration wants to undertake surveillance of persons in the US,” and ensures “FISA is the exclusive means of electronic surveillance and that no modifications can be made without express legal authorization.”

Yesterday morning, prior to Conyers and Reyes’s announcement, The New York Times reported that Democrats were expected to make “concessions…on wiretapping.” In fact, it was a misleading title, implying the House bill was a “capitulation.” It is not.

“The Restore Act, as currently drafted, crafts a careful balance between security and freedom and it makes clear that FISA is the law of the land,” said Rep. Jerrold Nadler (D-NY), chair of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

Moreover, the bill does not give a free pass to the White House’s prior wrongdoing; instead, it compels the Justice Department to “to reveal to Congress the details of all electronic surveillance conducted without court orders” since 9/11. “If President Bush is serious about protecting our nation and preserving the Constitution, he will support the Conyers-Reyes bill,” Nadler said. But the White House has already sounded its opposition. “It looks like the legislation is a step backwards from the Protect America Act,” White House spokesman Tony Fratto said.

“If the government wants to eavesdrop on a foreign target or group of targets located outside the United States, and there is a possibility they will be communicating with Americans, the government can get an ‘umbrella’ or ‘blanket’ court order for up to one year.” In a statement issued yesterday, the American Civil Liberties Union (ACLU) expressed concern about this provision, calling it a “major flaw” and urging Congress to “include individual warrants for Americans.”

Rep. Rush Holt (D-NJ), a member of the House Intelligence panel, introduced the “FISA Modernization Bill of 2007” yesterday which eliminates the “blanket” warrants provision. While a “blanket” order does not and cannot provide the same level of protection for the international communications of innocent Americans as can an individualized order, the Restore Act substantially reduces the likelihood that the government will abuse its powers by installing layers of checks and balances.

The bill would authorize court reviews of how the agencies choose their targets, “minimiz[e]” irrelevant information, and establish guidelines to make sure traditional warrants are being obtained when necessary.

The Restore Act does not provide retroactive immunity for telecommunications companies that cooperated with the administration’s warrantless surveillance.

“The Bush administration, urged by the telecommunication industry, is pushing hard for Congress to include immunity for past actions in any package to protect them from a series of civil suits.” The pending lawsuits fault the telcom companies for participating “in what amounted to illegal eavesdropping.”

For years, many telecom giants, including AT&T, gave the National Security Agency “direct access to their databases of communications records” at a time when the administration was carrying out a secret program that violated the FISA law. Under the Stored Communications Act, the telecom companies could suffer a $1,000 penalty for each violation, making the industry liable for tens of billions of dollars.

Immunity would absolve the companies of their wrongdoing, but more importantly, as Reason magazine’s Julian Sanchez has noted, “[I]f they’re immune from liability after the fact, then they have no motivation to do anything but comply [with the administration’s demands].”

Rep. Steny Hoyer (D-MD) indicated that telecom immunity should hinge on the administration’s complicity in turning over the records showing the utilities’ role in the eavesdropping. Without the records, “to give immunity at this point in time would be a blind immunity,” Hoyer said.


Yesterday, in a blow to the Bush administration, “a federal judge blocked the Pentagon from transferring a Guantanamo Bay detainee to Tunisia, where he allegedly faces torture.” Judge Gladys Kessler ruled that sending Mohammed Abdul Rahman back to Tunisia to face torture and possibly death would do “irreparable harm” and “would be a profound miscarriage of justice.”

Jennifer Daskal of Human Rights Watch noted the significance of the ruling, saying, “This is the first time since Congress tried to strip court jurisdiction over detainees that a court stepped in and said to the administration, ‘Hey wait. You can’t do what you say you want to do.'”

This recent decision “could lead to similar requests from detainees facing transfer to countries with spotty human rights records, possibly putting the US government in the difficult position of having to hold people at Guantanamo indefinitely even after the military has cleared them for transfer or release.”


House Oversight Committee Chairman Henry Waxman (D-CA) has held eight separate oversight hearings on Iraq and war contracts, but according to Roll Call, Sen. Joe Lieberman (I-CT) has had “relatively little interest” in “potential waste, fraud, abuse and misconduct among government contractors.”

He has held only one hearing on both the Iraq and Afghanistan reconstruction efforts. In 2003, Lieberman called for the Senate Committee on Homeland Security and Government Affairs to hold hearings on all post-war Iraq contracts, saying he was “concerned about the secretive and non-competitive procedures.”

But now as chair of the committee, he has left such oversight to Waxman. “You’ve got to set your own priorities, and it was clear to me that other committees were going to pick up on this,” Lieberman said. “He supports the war. So why does he not investigate the things that undermine the mission?” asked Charlie Cray, director of the nonpartisan watchdog Center for Corporate Policy.


The Bush administration has long held that President Bush’s expanded executive power is justified because of 9/11. “I believe in a strong, robust executive authority and I think that the world we live in demands it,” claimed Vice President Cheney in 2005. But in his new book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Boston Globe reporter Charlie Savage reveals that Cheney has been on a 30-year quest to implement his views of unfettered executive power.

For example, in a report authored in 1987, Cheney and aide David Addington defended President Reagan in the Iran-Contra affair by claiming it was “unconstitutional for Congress to pass laws intruding” on the “commander in chief.”

Decades later, Bush’s legal team used their first meeting in Jan. 2001 to map out a plan to expand presidential authority. According to Savage, who appeared on C-SPAN’s Washington Journal yesterday, Cheney was looking for a moment to “seize” power in the weeks before 9/11. “We are going to expand presidential power in any way we can. This was discussed in January 2001 at the first meeting of the White House legal team after the inauguration, long before 9/11,” observed Savage.

Previously, Savage won a Pulitzer Prize for his seminal work exposing President Bush’s abuse of signing statements.