In other words. Bush bragged about illegally spying on Americans a few years ago. Everyone was outraged. Then enough Democrats in Congress (and almost all Republicans), instead of punishing him for breaking the 4th Amendment, decided to retroactively make all the illegal stuff the White House has been doing legal. Now, Bush is fearmongering again that the FISA (Foreign Intelligence Surveillance Act) is outdated, because it covers wiretaps but not email, etc. Instead of making a small technical change, enough Democrats (and almost all Republicans) in Congress decided to give the White House sweeping new PATRIOT-act style powers when they updated the FISA law.
FISA (remember, the Foreign Intelligence Surveillance Act) was a law Congress passed in the wake of Watergate, making sure that the FBI had to check with a court up to 2 days after wiretapping someone. Remember, this law governs spying on Foreigners. Spying on American citizens without a warrant is explicitly forbidden by the 4th Amendment.
This sweeping change to FISA with Patriot-Act style powers was called the Protect America Act. Congress passed it about 7 months ago, and gave it a 6 month window before it expired. So it was due to expire. The House passed a pretty good law to replace it. The Senate split consideration of the law into two committees: Intelligence and Judiciary. The Judiciary Committee, chaired by Senator Patrick Leahy of Vermont came out with an ok version of the bill. The Intelligence Committee, chaired by Senator Jay Rockefeller of West Virginia, came out with a version of the bill so horrible that it pardoned Telecommunication companies (such as AT&T, Verizon, and Sprint) for any and all crimes they made while aiding the White House. Remember, this spying all started before 9/11.
Now, Harry Reid, Senator from Nevada and Senate Majority Leader, had a choice. He could make the (comparitively good) Judiciary bill the official one, or the (horrible unconstitutional illegal) Intelligence bill the official one. Guess which one he chose? The way the Senate works, since Harry Reid chose to make the Judiciary bill the official bill that the full Senate worked on, it was much harder to amend the bad bill into the good one than keep the good one intact.
After a lot of boring parliamentary stuff that you don’t need to worry about (just know that Republicans are good at blocking stuff they don’t like in the Senate), the Senate rejected any sort of amendment to the (bad) Judiciary Bill that would make it any better at all, and then passed it as-is.
Where does this leave us? The bills that the Senate passed and the House passed are substantively different. We’re waiting to see what unified bill comes out of the conference committee (composed of elements of the House and Senate, this committee takes the two bills, comes up with a compromise bill, and sends it to the House and Senate to be voted on, with no amendments permitted).
While all this drama was going on in Congress, the (Patriot-Act style) Protect America Act expired. Democrats offered to extend it for a few weeks until the new bill could be voted on. Bush demanded that they extend the (Orwellianly-named) Protect America Act into a permanent law, or he’d veto it. House Democrats showed some spine* and basically didn’t buy his B.S.
So, on one hand we have the Republican White House and Republicans in Congress swearing up and down and frantically running to the press and creating other sorts of theatrics, urging that the Protect America Act (that is only 6 months old) is absolutely indispensable to the safety of the Country, terrorists will attack as soon as it expires, etc. On the other hand you have Bush vetoing (or threatened to veto such that no one even bothered trying, it’s a bit unclear) an extension of the Protect America Act.
This is a prime example of the Republican Fear Agenda.
For instance, look at the video ad that Republicans are running now on the issue. It’s a work of art, almost, how their ads look more and more like promos for 24.
And here’s a kickass response:
See Louise Slaughter in the video? If my house was 500 feet over to the side of where it is now, she’d be my congresswoman. I’m proud of her today.
I’ve heard repeated many many times that Bush violated the 4th Amendment with his wiretapping. This is stated as fact without any support other than naked statments like yours that “Spying on Americans without a warrant is explicitly forbidden by the 4th Amendment.” That is certainly an open question.
p>The 4th Amendment protects areas where a person has a reasonable expectation of privacy. There was a case in the 6th Cir. about a year ago that examined the claim that the Bush wiretapping violated the 4th Am. I can’t think of the name off the top of my head and it was dismissed on procedural grounds because the plaintiffs lacked standing. However, considerable time was given in the briefs of both sides arguing whether a person has a reasonable expectation of privacy in an international call to a person suspected of having ties to terrorist organizations by the US government. While it is very clear to me that Bush’s wiretapping did in fact violate the FISA statute, the 4th Am. question is a much more difficult one.
p>Even if the FISA violation is conceded (which I think it has to be) there is still an open question in regards to whether Congress infringed on the President’s inherent Constitutional powers when it passed FISA. I believe that every President since the FISA Act became law has taken the position that FISA can act as an unconstitutional infringement on the President’s powers. I apologize for the lack of citations in this post but I really just wanted to throw out some thoughts in response to your post. If this actually begins a legitimate discussion then I’ll go back and find some cites from the 6th Cir case and the positions on FISA from previous administrations.
The text of the 4th amendment:
p>There’s no talk of a reasonable expectation of privacy, so I’ll assume that that standard was established by case law.
p>2 things off the top of my head.
p>1: If I call a family member in Iran, I do have a reasonable expectation of privacy. If the US government suspects that my aunt is a terrorist, then what’s to stop the government from declaring that all foreigners are suspected terrorists? In other words, the term “suspected terrorist” is broad enough that there should be some check our authority so that the government can’t declare, for example, anyone I call a “suspected terrorist” just to snoop on me.
p>2: To my mind, the more important point: This is indiscriminate spying. What happens is that every (international?) call is routed through a sort of text-to-speech algorithm, then searched for key words, suspicous phraseology, etc. Therefore, without a warrant, the government is searching through everyone’s calls. I’m pretty sure that’s a clear violation of the 4th amendment.