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Cutting Corners on the Constitution

The Senate on Tuesday debated legislation that would undercut the 1978 Foreign Intelligence Surveillance Act. Adopted in the wake of government abuses of citizen rights, the Watergate- and Vietnam-era law makes the government get a warrant to intercept communications between someone in the United States and someone outside our borders. In the three decades since the law was enacted, a special court it created has approved nearly 20,000 warrants.  A handful of requests were rejected.  Moreover, if there is what the government deems to be an emergency, the existing law has a loophole.  Wiretap first, get court permission later.

The new legislation, expected to be voted on by senators on Wednesday, would make it much easier to spy on Americans at home. It would allow the government to circumvent the court and collect large amounts information without a warrant for asserted national security reasons. It also would shield from legal liability the telephone and Internet provider companies accused of turning over private communications without a warrant.

“Every American understands that we have got to do every single thing we can to protect the American people from terrorist attacks. There is no debate about that,” Senator Bernie Sanders said. “Some of us believe, however, that we can be successful in doing that while we uphold the rule of law, while we uphold the Constitution of this country, which has made us the envy of the world.

“With strong law enforcement, with a strong and effective judiciary, with Congress working diligently, we can be vigorous and successful in protecting the American people against terrorism and we can do it in a way that does not undermine the constitutional rights which people have fought for hundreds of years to protect,” he stated.

Sanders and Judiciary Committee Chairman Patrick Leahy cosponsored an amendment to strike provisions in the bill that give retroactive immunity to the telecom companies. Sanders voiced concern about the precedent that would be created by granting immunity to companies that turned over records at the request of the White House.

“If we grant them retroactive immunity, what it really says to future presidents is, ‘I am the law because I'm the president and I will tell you what you can do and because I tell you what to do or ask you what to do that is, by definition, legal.’

“That is a very bad precedent,” Sanders continued. “The president is not the law. The law is the law. The Constitution is the law. I don't want to set a precedent by which any president can tell any company or any individual, you go out and do it, don't worry about it, no problem at all. That is not what this country is about.”