Monday, March 17, 2008

House Democrats Again Reject Bush's Disregard for Constitution on Wiretaps

Bush Vows to Veto Surveillance Bill That Doesn't Grant Telecom Companies Immunity From Lawsuits, But House Democrats Vow They Won't Usurp the Fourth Amendment and Insist It's Up to the Courts -- Not the White House or the Congress -- to Decide Legality of Warrantless Wiretaps

An aerial view of the Capitol Building in Washington, where the Democratic-controlled House of Representatives again defied President Bush and passed a wiretap bill that does not grant telecommunications companies immunity from lawsuits over the companies' turning over their customers' confidential records to the government without first requiring the government to produce court warrants -- a requirement mandated by the Fourth Amendment of the Constitution. Bush has vowed to veto the measure. (Photo courtesy U.S. Department of the Interior)

By Skeeter Sanders

President Bush's determination to have the federal government eavesdrop on Americans' electronic communications without court warrants -- in clear violation of the Constitution -- has run into a brick wall, as the Democratic-controlled House of Representatives again refused to yield to his demand that telecommunications companies be granted immunity from civil lawsuits.

The House passed by a narrow margin Friday a surveillance bill that President Bush has vowed to veto if it reaches his desk. The measure, passed by a party-line vote of 213-197, denies immunity from civil lawsuits to telecommunications companies that turned over to the government the confidential records of their millions of customers without first demanding the government to produce court warrants.

Such warrants are required by the Fourth Amendment of the Constitution. House Democrats insisted that they will not be a party to what they see as a wholesale disregard of Americans' Fourth Amendment constitutional right to be "secure from unreasonable searches and seizures" by the government and that it's up to the courts -- not the White House or the Congress -- to decide the legality of the government's warrantless wiretapping program.

Bush has adamantly insisted that the warrantless surveillance program, initiated after the September 11, 2001 terrorist attacks on New York and Washington, is legal. But this blogger has insisted with equal adamance that the program is unconstitutional -- and has a unanimous 1972 U.S. Supreme Court ruling and a subsequent 1975 U.S. Appeals Court decision to prove it.

GOP, Democrats Rip Each Other Over Spy Bill

White House deputy press secretary Tony Fratto condemned the House action as a "significant step backward in defending our country against terrorism." But Fratto predicted that the House bill will go nowhere. "The good news is that the House bill will be dead on arrival in the Senate and, in any event, would be vetoed by the President if it ever got to his desk," Fratto said.

Republican House minority leader John Boehner condemned the Democrats for allowing the issue to fester over the legislature's recess. "This flawed legislation has no chance of becoming law, and the majority knows it," he said. "The fact that Congress is going on spring break, at a time when Al-Qaida and other terrorist enemies continue plotting against us, is both irresponsible and dangerous."

But if Fratto and Boehner think that House Democrats are going to roll over and play dead while the Bush administration rides roughshod over the Constitution in its pursuit of the "war on terror," they are sorely mistaken.

Senator Patrick Leahy (D-Vermont), chairman of the Senate Judiciary Committee, said the House bill was an improvement on the Senate version, and accused the Bush administration of sabotaging efforts to come up with a compromise.

"Unfortunately, congressional Republicans and the administration have refused to engage in meaningful discussions or negotiations about the legislation," Leahy said. "The White House has tried, again, to treat Congress like a rubber stamp."

Spy Bill Bush Wants Is a Step Toward Authoritarian Tyranny

The White House also continues to display a callous disregard for the Constitution that the president is bound by his oath of office to "preserve, protect and defend" -- particularly the Fourth Amendment. The surveillance bill that Bush wants is a dangerous step toward an authoritarian tyranny that strips Americans of their constitutional rights.

To grant the telecoms immunity from lawsuits is to deny the American people their First Amendment constitutional right to petition the judicial branch of government for redress of grievances -- namely, the executive branch of government spying on them without probable cause and without court warrants, in violation of the Fourth Amendment.

The Supreme Court in 1972 unanimously struck down a similar warrantless surveillance program by the Nixon administration, declaring that the program violated the Fourth Amendment requirement that the government obtain court warrants to wiretap the telephone conversations of suspected domestic radicals during the Vietnam War.

The high court's ruling was subsequently bolstered in 1975 by an equally unanimous decision of the U.S. Court of Appeals for the District of Columbia, the nation's second-highest court, to expand its scope to include foreign intelligence cases.

The administration of then-President Gerald Ford chose not to appeal that ruling to the Supreme Court, assuming that it would likely lose. Thus the appeals court decision remains in force to this day.

Moreover, the telecoms are required under the Electronic Communications Privacy Act -- passed by Congress in 1986 to put added teeth to the Fourth Amendment -- to demand the government produce court warrants before the companies can turn over their confidential customer records.

In the immediate aftermath of the 9/11 attacks, the White House bullied Congress into passing the USA Patriot Act, which weakened the ECPA by authorizing the FBI to issue "national security letters," or NSLs, instead of court warrants to telecommunications companies ordering them to disclose records about their customers.

A key provision of the Patriot Act also imposed a "gag order" on the telecoms, barring the companies from telling their customers that their records were being turned over. That provision was ruled unconstitutional last fall under the First and Fourth Amendments by a U.S. District Court in New York.

Civil Libertarians Hail House Vote

Instead of caving in to Bush, House Democrats reiterated their opposition to telecom immunity by including a call for an independent panel armed with subpoena power -- similar to the 9/11 Commission -- that would investigate the secret spying.

The House bill also authorizes the telecoms to defend themselves in court by showing secret documents to federal judges. The Bush administration has blocked them from using classified information in their own defense -- a move blasted by critics as violative of the telecoms' Sixth Amendment right to a fair trial.

The Electronic Frontier Foundation, which brought the leading suit against the nation's telecoms, applauded House Democrats' determination not to be a "rubber stamp" for the administration.

"Amnesty proponents have been claiming on the Hill for months that phone companies like AT&T had a good-faith belief that the NSA program was legal," EFF senior staff attorney Kevin Bankston said. "Under this bill, the companies could do what they should have been able to do all along: tell that story to a judge."

Bush favors a Senate version of the bill that does give the companies legal immunity, saying it is a matter of fairness to the companies. The White House had assured them -- wrongly -- that no court order was needed for the wiretapping program.

With their vote on Friday, House Democrats served notice that telecom immunity is dead -- making reconciliation with the Senate version of the measure in the House-Senate Conference Committee all but impossible.

Surveillance Now Reverts to FISA Law -- Which Requires Court Warrants

With the expiration of the Protect America Act and the refusal of the House to approve telecom immunity, the Bush administration is now forced to conduct its anti-terror surveillance under the provisions of the Foreign Intelligence Surveillance Act, passed by Congress in 1978 in response to the Nixon administration's unconstitutional use of federal resources to spy on political and activist groups without warrants.

The FISA statute enforces the Fourth Amendment by requiring the government to obtain warrants from a special court established under the law for surveillance of Americans' telephone and Internet communications with foreign sources.

Rarely has the Foreign Intelligence Surveillance Court, an 11-member panel of specially assigned federal judges, turned down government requests for such warrants. Yet the Bush administration has repeatedly evaded the court in its pursuit of anti-terror wiretaps. When the warrantless eavesdropping program was revealed by The New York Times in December 2005, FISA Court Judge James Robertson resigned in protest.

Bush Puts Protecting Telecom Companies Ahead of America's Security

Bush argues that the participating telecoms were patriots, and that they would stop complying with lawful court orders in the future if not freed from the lawsuits accusing them of illegally cooperating with the administration.

Hogwash! The telecoms who participated in the warrantless surveillance program aren't patriots at all. The bottom line is that Bush's warrantless spying program violates the Constitution -- the supreme law of the land. Any company that participates in that program is guilty of breaking the supreme law -- and must not be allowed to get away with it.

That Bush can justify vetoing a bill containing new spying powers the president himself says are vital to American's security -- simply because deep-pocketed telecommunications corporations are facing lawsuits for violating the Constitution and federal privacy laws -- send a clear message that this president places a higher priority on protecting corporations than on protecting the American people.

Were it not for the fact that Bush already is a lame duck with only 10 months left in office -- and the fact that nobody wants Dick Cheney sitting behind the president's desk in the Oval Office -- his impeachment would otherwise be a foregone conclusion.

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In reviewing The 'Skeeter Bites Report's archives since its second anniversary last December, I discovered that the article numbers were incorrect. This week's article is the 20th since the third volume began on December 10, 2007. The archives have been corrected accordingly.

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Volume III, Number 20
Copyright 2008, Skeeter Sanders. All rights reserved.


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