Report from Governmental Affairs

Balancing Act


The push for legislation began earlier this year in response to revelations that the Bush administration was conducting domestic surveillance outside the process specified by the Foreign Intelligence Surveillance Act of 1978.

That act requires a special court to approve government re­quests for warrants for domestic wiretaps for foreign intelligence purposes.

In reaction to the revelations, ABA President Michael S. Greco of Bos­ton appointed Miami lawyer Neal R. Sonnett to chair the Task Force on Domestic Surveillance in the Fight Against Terrorism. In a quick turnaround, the task force developed recommendations on the issue that were adopted in February by the ABA House of Delegates.

The ABA policy urges that Con­gress conduct a full investigation of the nature and extent of the government’s domestic surveillance activities before taking legislative action. The policy also urges Con­gress to affirm that the 2001 law authorizing the use of military force against al-Qaida does not provide a statutory exception to FISA’s requirements, and that any exception can be authorized only through affirmative and explicit congressional action. In addition, the policy states that any proceedings regarding the surveillance program should be open to the public, except when information is classified, and that the president must ensure that the House and Senate are fully and currently informed of all intelligence operations as required by the National Security Act of 1947.

“The administration’s program of electronic surveillance raises very serious questions about its constitutionality under the Fourth Amendment and other sections of the Constitution,” Greco wrote to the Senate Judiciary Committee earlier this year. FISA has successfully balanced the needs of national security and constitutional freedoms, Greco wrote, and amendments to the law should be considered only if Congress has determined after a thorough investigation that it has not kept up with changing threats. Any amendments should be consistent with the Fourth Amend­ment, Greco added.

VICTIMIZED RIGHTS

Sonnett concurs. “domestic surveillance legislation must strike a proper balance between individual liberty and executive power,” says Sonnett, who also chairs the ABA Task Force on Treatment of Enemy Combatants. “We simply cannot afford to allow our constitutional freedoms to become a victim of the fight against terrorism.”

In May, Reps. Jane Harman, D-Calif., and John Conyers Jr., D-Mich., introduced a bill that reflects principles addressed in the ABA’s policy. The proposed Lawful Intel­ligence and Surveillance of Ter­rorists in an Emergency by NSA Act affirms that electronic surveillance of Americans for foreign intelligence purposes should be con­duct­ed exclusively under FISA. The bill also asserts that any attempt to listen in on the electronic communications of Ameri­cans must be conducted in accordance with FISA or Title 18 of the U.S. Code, which governs crime and criminal procedure. The bill also would require the administration to report difficulties in complying with FISA to certain House and Senate committees.

“Information provided by comprehensive reporting will facilitate the oversight responsibility of Con­gress and will educate members about any potential needs of modernization of the law to meet existing challenges,” Greco stated in a letter to Harman and Conyers.

Meanwhile, the Senate Judiciary Committee may act on legislation before completing a full investigation of the intelligence oversight process. If that happens, the ABA says it favors the narrowly tailored approach set forth in a bill introduced by Senate Judiciary Committee Chairm­an Arlen Specter, R-Pa., and Dianne Feinstein, D-Calif.

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