House Approves Unconstitutional Surveillance Legislation

There are not words to describe my dismay and disgust at the House vote this morning on H.R. 6304, or The FISA Amendments Act of 2008. By a vote of 293-129 the House voted to sanction warrantless wiretapping and handed immunity to telecommunications companies for their roles in domestic spying.

Caroline Fredrickson, director of the ACLU’s Washington Legislative Office, is pretty angry but she is more restrained than I feel right now:

"It’s Christmas morning at the White House thanks to this vote. The House just wrapped up some expensive gifts for the administration and their buddies at the phone companies. Watching the House fall to scare tactics and political maneuvering is especially infuriating given the way it stood up to pressure from the president on this same issue just months ago. In March we thought the House leadership had finally grown a backbone by rejecting the Senate’s FISA bill. Now we know they will not stand up for the Constitution.

"No matter how often the opposition calls this bill a ‘compromise,’ it is not a meaningful compromise, except of our constitutional rights. The bill allows for mass, untargeted and unwarranted surveillance of all communications coming in to and out of the United States. The courts’ role is superficial at best, as the government can continue spying on our communications even after the FISA court has objected. Democratic leaders turned what should have been an easy FISA fix into the wholesale giveaway of our Fourth Amendment rights.

"More than two years after the president’s domestic spying was revealed in the pages of the New York Times, Congress’ fury and shock has dissipated to an obedient whimper. After scrambling for years to cover their tracks, the phone companies and the administration are almost there. This immunity provision will effectively destroy Americans’ chance to have their deserved day in court and will kill any possibility of learning the extent of the administration’s lawless actions. The House should be ashamed of itself. The fate of the Fourth Amendment is now in the Senate’s hands. We can only hope senators will show more courage than their colleagues in the House."

The Senate is expected to vote on the bill next week, but I doubt that they will do any different.

Why? Why do only 129 members of the House trust the Constitution’s Fourth Amendment? “The war on terrorism” is the standard answer. But for those who think that the Constitution should be set aside because of this threat to our country understand neither the Constitution nor our history well. In the recent Supreme Court decision restoring the right of habeas corpus to detainees at Guantanamo Bay Justice Anthony Kennedy put it well:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

How I wish the other 293 members of the House of Representatives had such confidence in the laws and Constitution!

I have been writing about this issue since January and as late as June 10th wrote that this was a fight we could win: “We’ve come too far to lose now; it is one battle for liberty that we can win.”

It looks like I was wrong because I don’t expect the Senate to do any better when it takes up the bill next week.

This morning, when defeat was clear, I began with self-accusation. Did I not make enough calls, write enough letters, write enough columns, or talk to enough people about what is at stake here? Whatever I and others did to protest was not enough.

Then, there was self-doubt. Did Congress really know best? I have a friend whose political instincts I generally trust who probably supports the “compromise” bill. I’m going to talk to him and see if he can convince me that Caroline Fredrickson is somehow wrong, or that the damage was not as great as she imagines.

Instead of fretting about what happened in the House today I will go back to the ancient Chinese story I told in my last blog about “The Foolish Old Man Who Moved Mountains” and rededicate myself to the next phase of the struggle to regain the liberties we lost today, however long it takes. I hope to meet you on that road.

- Milo