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Legalized Warrantless Surveillance

Bruce Fein, American Freedom Agenda

August 15, 2007

Guest Speaker

Bruce Fein is a constitutional expert and a former Reagan administration official turned warrantless wiretapping critic. Fein has been relentless in his articles and testimony before Congress since we learned in December 2005 that the president had for years been illegally wiretapping without a warrant. Fein is founder of the American Freedom Agenda, an organization devoted to restoring checks and balances in government.

Download an audio recording of this conference call. (36 min 28 sec, 8.34MB)

Notes on Conference Call

We started the call with this 1786 quote from John Adams, to set the stage for Fein’s presentation, and our strategy session that followed.

“‘Nip the shoots of arbitrary power in the bud’ is the only maxim which can ever preserve the liberties of the people. When the people give way, their deceivers, betrayers, and destroyers press upon them so fast, that there is no resisting afterwards. The nature of the encroachment upon the American Constitution is such as to grow every day more and more encroaching…. The people grow less steady, spirited, and virtuous, the seekers more numerous and more corrupt, … until virtue, integrity, public spirit, simplicity, and frugality become the objects of ridicule and scorn, and vanity, luxury, foppery, selfishness, meanness, and downright venality swallow up the whole society.”

Bruce Fein, Guest Speaker

We highlighted these key points from Fein’s presentation:

1. The President’s wiretapping program(s) is (are) so shrouded in secrecy that the fact we are even discussing it (them) is accidental.

Though there was nothing new about how terrorists communicated before as opposed to after 9-11, the president has claimed inherent power to secretly spy on Americans’ communications without a warrant, and without oversight from any government branch.

2. Despite the White House insistence that Congress pass the “Protect America Act,” the president claims he doesn’t have to obey any law, and has inherent powers under the Constitution’s Article II powers.

Behind all the legislative maneuvering, the fact remains that since the president claims that his inherent power goes beyond the Foreign Intelligence Surveillance Act (FISA), or any other law, his negotiations to change the law can be considered disingenuous.

3. There was a very simple fix to the Foreign Intelligence Surveillance Act, which was completely ignored in the passage of the “Protect America Act.”

Because all international calls now transit a domestic cable in the U.S., the Bush Administration claimed a warrant was required irrespective of who is making and receiving the call. A simple fix was to amend FISA with these words – “No Warrant shall be required under FISA if the sole basis for issuing the warrant is that the communication would transit the US.”

4. The “Protect America Act” obliterates the FISA Act in these three ways:

a. The Protect America Act did not confine itself to international terrorism investigation, but inserts itself into any international situation, potentially extending to AIDS in Uganda or pollution in Brazil.

b. No warrant is required if the Attorney General believes he’s spying on someone abroad, and from the day he begins surveillance, it may continue for up to a year. So, if you take a one-day trip to Mexico, and the Attorney General begins surveillance on your phone calls, he could eavesdrop on your communications for the next year.

c. Intelligence Agencies may determine whether an individual is abroad or not, and only those procedures can be submitted to the FISA court. Unless they are “clearly erroneous,” the Attorney General can order government surveillance based on the procedural likelihood that you are in a group of people who may be abroad. This is a novel and flagrantly unconstitutional interpretation of the Fourth Amendment.

5. Normal life involves risk and the government’s policy of risk pre-emption threatens our freedom.

The administration's policy is based on the idea that: “We’re doing everything conceivable to make you safer even if we have to violate the law.” It’s up to ordinary people to confront this false notion of safety by saying, “If our government does everything to avoid risk, we’ll all be in jail or under police guard, and that’s not the kind of America in which we want to live.”