Restore Judicial Oversight to Domestic Surveillance
Sonnett, Neal R., Judicature
The editorial in this issue calls for legislation to restore the right to habeas corpus for Guantanamo prisoners in the Military Commission Act of 2006 and maintains that, by stripping courts of habeas jurisdiction, "the administration and the Congress have put at risk both the separation of powers and the Rule of Law." No wonder one United States senator called passage of the MCA the "worst vote in the last twenty years."
Unfortunately, that record for the "worst vote" may have already been broken by the late night passage of amendments to FISA, the Foreign Intelligence Surveillance Act of 1978, as Congress rushed to begin its August recess. This irresponsible legislation, misleadingly titled the "Protect America Act of 2007," has gutted important judicial oversight and checks and balances, and placed unwarranted power solely in the hands of the executive.
FISA was enacted in 1978 after a Senate committee uncovered evidence of extensive warrantless spying on American citizens by the NSA The law required prior judicial approval for all foreign intelligence surveillance that intercepted communications of U.S. persons and has been amended, at the administration's request, eight times since the 9/11 attacks.
Nevertheless, the President secretly authorized the NSA to eavesdrop on Americans inside the United States without court-approved warrants required by FISA, despite the shaky legal basis demonstrated by then-Acting Attorney General James Comey's refusal to authorize it and the now famous evening race by Alberto Gonzales and Andrew Card to the hospital bed of a weak and ailing Attorney General John Ashcroft to convince him to overrule Comey.
As a federal court prepared to hear a legal challenge to the NSA domestic surveillance program, the administration announced that it would henceforth follow the law, but after part of its program was rebuffed by the special FISA court, it proposed amendments to greatly diminish or completely exclude the essential role of the judicial branch in ensuring that national security is protected in a manner consistent with constitutional guarantees. …