“They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.” Ben Franklin’s sage words, invoked by Rep. Jane Harman (D-CA), echoed through a panel event hosted by the Center for American Progress Action Fund last week. Recent hasty changes to the Foreign Intelligence Surveillance Act, or FISA, have made Franklin’s words exceptionally timely.
What can be done to improve FISA to safeguard both our liberty and our security? FISA is up for review in less than six months, and Congress will have to consider these questions of privacy protection before making another deal with the administration.
Harman stressed that Congress needs to reverse the blank check it recently gave to the White House to spy without warrants on Americans. In its current form, FISA gives the executive branch the power to monitor conversations between foreigners and Americans without obtaining a warrant. But we need to “change the paradigm to respect checks and balances in FISA,” Harman said.
Congress needs the tools to monitor the program, including reports from the executive, an Inspector General audit, and reports from the FISA courts. Just as importantly, the Justice Department needs more manpower to review surveillance warrant requests and a streamlined electronic system to review documents.
Harman’s fellow panelists, Bruce Fein a former senior official in the Reagan Justice Department, and Greg Nojeim, Senior Counsel and Director of the Center for Democracy and Technology’s Project on Freedom, Security, and Technology, agreed. Fein also cautioned that the Bush administration is using FISA for political purposes. “Power in democracy is access to information,” Fein said, hinting at the administration’s power-hungry tactics. “Checks and balances exist to control those with the appetite for power.”
Those checks and balances were cast aside by both Congress and the Bush administration when FISA was amended in early August of 2007 by the Protect America Act. The administration asked for, and easily received, unprecedented power to spy on American communications with foreigners without warrants. The changes to FISA made by the Protect America Act are set to expire in less than five months.
As Fein said, the scope of executive power granted by FISA is much larger than its purported justification—the Justice Department bottleneck of FISA request warrants, the necessary immediacy of listening to suspicious communications, and continual invocations of an imminent terrorist threat to the United States.
In several months, Congress will have the chance to restore their important check on the executive branch. The debate about how to protect civil liberties while also safeguarding security must be conducted with input from Congress and other experts in the public realm, not behind the cloak of secrecy the administration tends to prefer. “FISA is the exclusive means, not an optional means,” for the executive branch to collect information on American citizens’ foreign communications under the law, said Harman.
The panelists all agreed that Congress must demand that the White House carefully craft a law to increase both liberty and security. But Harman expressed doubts about whether the administration would follow the law after it is amended. “I don’t have confidence this administration will follow any law Congress crafts.”
Fein underscored the importance of focusing on both security and liberty: To sacrifice everything to achieve total security, he said, “would create a police state, and we don’t want to be entirely risk free, because that would mean being free of all liberty.”