Last week I opened my email to find a communication from my friend John Hall, a Congressman from New York who is representing a portion of the state just down the road from where I live. I respect, admire and intend to emulate Congressman's Hall's openness and communication as he explains what he did and why. Below is the note that he sent to his email list:
Today the House of Representatives voted on H.R. 6304, the FISA Amendments Act of 2008.
I have consistently supported modernizing the existing FISA law to give our intelligence community the tools it needs to identify and defeat terrorists in today's high-tech world, while at the same time preserving the freedoms and rights that define America. Three times I voted to pass legislation that would strengthen and modernize FISA and reaffirm the rule of law. Although today's bill made some improvements over previous attempts to update FISA, H.R. 6304 regrettably fell short of achieving that critical balance. The rule of law lies at the core of America's founding principles, and the language in this bill was too weak to ensure that any breach of our laws that may have occurred under the Bush Administration's warrantless wiretapping program will be fully addressed. It is wrong to deny Americans the right to pursue these matters in court, or to short-circuit the judicial review that lies at the heart of our system of checks and balances, the bedrock of our Constitution. Accordingly, I voted against this bill.
I will continue to support real protection of our country from terrorist threats, while at the same time fighting for robust oversight by the Legislative and Judicial branches of our government.
At the heart of the debate is the truncation of the Fourth Amendment, which outlines the right of the people to be secure in their persons and belongings. That right, which many would consider a bedrock of basic liberties in the Nation, is altered to allow the Federal Government to conduct searches and seizures of personal property without a warrant from a court of law. Here is the actual language:
Amendment 4 - Search and Seizure. Ratified 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Under FISA, the Federal Government has the ability to enter a domicile and seize terrorists - without a warrant - it must just then go back and justify and ask for the warrant based on its actions. Another fundamental injustice is the current and new ability of the government to wiretap, eavesdrop and record private conversations on cell phones, traditional phones, email and posted traditional mail. They can do this without a warrant because again they claim that that government ability is needed to be able to catch potential terrorists in the act before they strike. But, again this is just not true. The government already has that ability but under previous pre-Bush Administration law the enforcement agencies must seek a warrant within days of the action.
Though I do not entirely approve of the version that recently passed the House of Representatives, the new rules would at least restore a role for the courts (link):
The deal, expanding the government’s powers in some key respects, would allow intelligence officials to use broad warrants to eavesdrop on foreign targets and conduct emergency wiretaps without court orders on American targets for a week if it is determined important national security information would be lost otherwise.
My main concern with warrantless searches and seizures themselves is the potential for abuse. For example, citizens who are involved in a car crash may one day see their homes searched for evidence of substance abuse that would then allow for medical evidence to be extracted in the course of an investigation. After all, privacy - in its most intimate form- is the security of blood samples, breathalyzer tests and DNA. But, if the government can search and seize any and all information based on the undisclosed justifications of field officers where will it stop?
But the bigger problem here is the immunity that would be given if it is found that the government and cooperating officials acted without due justification. Under current law, those involved can be held accountable and the individual on whom the actions were perpetrated can seek redress before the government. This right to seek redress is another fundamental individual liberty that the Revolutionary War was fought to gain for all Americans. This current bill takes away the right of citizens to seek redress (link):
The agreement would settle one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a federal district court determines that they received legitimate requests from the government directing their participation in the warrantless wiretapping operation.
This is what Congressman John Hall was referring to when he wrote "It is wrong to deny Americans the right to pursue these matters in court." Even Republican Senator Arlen Specter said "I am opposed to the proposed legislation because it does not require a judicial determination that what the telephone companies have done in the past is constitutional." (Sorry no link for this one) In my opinion, this is the biggest shortcoming of the new FISA bill, a failure to ensure the constitutional right of citizens to seek redress for violations of privacy. Senators Feingold and Dodd, among others have similar reservations about the legislation. My understanding is that Senator Harry Reid is considering a separate vote on retroactive immunity to give dissenters a chance to vocalize why they are opposed to this portion of the bill.
Perhaps it is easier for me than for some others to oppose immunity for telecom operatives because I don’t money from any corporate PACs. While it is impossible to fully understand the motivation of some who voted for the renewed FISA Bill, many have written that the vote was taken out of fear that they could be painted as being soft on defense. This "soft on defense" worry is a perennial concern for Democrats who carry in traditional baggage vis-a-vis the Republicans, who have mastered the false argument that bigger defense budgets and more troops in Iraq somehow makes us more safe in the world. It's a shame that this reality is what it is. But ignoring what I believe to be a fundamental duty to defend the constitution, just to ensure a better public position in an election, is not motivation enough for myself - nor for John Hall.
Congressman John Hall, a friend of mine, took a very principled stance. My opponent in the current congressional campaign in the 29th Congressional district did not. Like so many other votes Rubber stamp Randy voted with George Bush instead of taking the time to fully understand the issue, the importance of defending the Constitution and the future unintended consequences of his actions.
I am running for Congress not to defend the White House, or the House of Representatives but rather to fulfill the oath of office that see to it that I Protect and defend the Constitution of the United States. If I fail in my votes to protect the Constitution then I will have not only failed the people who sent me to Washington but I have also failed the many generations of Americans who sacrificed to give us a Constitution that should guide each and every vote in the House of Representatives.
Thank you John Hall - and all those who stood with you.
Please visit my website, Massaforcongress.com.