The Bush administration seeks to change the FISA law to make its surveillance easier. It requests an easing of restrictions on surveillance to make it easier to search private information and conduct surveillance on people without any oversight by a court, such as FISA. We, the American people, will need to ask ourselves: Is it ever a good idea to give an administration the right to search and surveil without a check on the cause?
See this article: http://www.msnbc.msn.com/id/18100710/
At stake are two basic principles of liberal democracy: the sovereignty of individuals and the balance of powers. The justification is our “protection,” an argument that plays on our collective fears. The argument is that the government should be able to search and surveil some people without warrant, namely foreigners. For many, that will seem reasonable. But really, why should government undertake spying without justifiable cause?
The other principle at stake is the principle of a check and balance on the powers of the executive branch. MSNBC identifies one request this way:
“the administration wants to allow government lawyers to decide whether a FISA court order is needed for electronic eavesdropping based on the target of the monitoring, not the mode of communication or the location where the surveillance is being conducted”
The change is this: instead of assuming that FISA or other court approval is necessary, it will simply be up to government lawyer discretion to decide if it is necessary. No check. No balance. One can be sure that any administration will deem such approval “unnecessary” whenever it is merely “inconvenient.”
A third principle is also violated. The placement of such discretion in the hands of an administrative official is in direct conflict with the Rule of Law, one of the most basic principles of a free country. Rule of Law specifically and directly removes such discretion from administrative officials because such discretion necessarily puts the power in the hands of men, not laws. The laws, under such a system, cease to be objective. Soviet style socialism or communism show what happens when there is no Rule of Law. The Rule of Law is foundational to American liberal democracy.
All three of the principles at stake are reflected in the Fourth amendment. Here it is for reference:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We must remember that the Constitution and Bill of Rights are meant to protect the innocent from the temptations of tyranny to which officeholder are always subject. The founding documents do no protect the guilty by giving them rights; rather, they protect the innocent from being wrongly violated, accused, and punished. If Congress and the people acquiesce in this continued concentration of discretionary executive power, we will be giving up our freedom and liberty. Is this what we really want?
Anthony Signorelli is the author of Call to Liberty: Bridgng the Divide Between Liberals and Conservatives
