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This weekend, apparently in a hurry to get to their vacation, both the House and the Senate voted to amend the Foreign Intelligence Surveillance Act (FISA) expanding the ability of intelligence agencies to monitor telephone calls and e-mails without a court order or warrant. President Bush signed the bill into law Sunday.
The vote in the Senate was 60 to 28. Among the Democrats voting for it was Colorado Senator Ken Salazar. On the House side, his brother Rep. John Salazar voted for it, while Reps. DeGette, Udall and Perlmutter voted against it.
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Why did Senator Salazar break with the Democrats and vote to weaken FISA’s protections and grant more authority to President Bush and the Attorney General to conduct warrantless surveillance without court approval?
Here’s what Senator Salazar said on CNN in December, 2005, after the President’s warrantless surveillance program came to light.
SALAZAR: You know, I think it’s arguable that he did break the law, and I think it’s important for the U.S. Senate to hold hearings to make that determination. There is nothing specific in any of the laws that he has cited or even in the Constitution that would give the commander in chief the power to go ahead and spy on American citizens. And that’s what has happened here. And so I think it’s very important that we scrutinize what it is that he did and make a determination as to whether or not the law has, in fact, been broken.
As to the legality of the NSA warrantless surveillance, he told CNN:
When the court has taken a look at this in the past, including the U.S. Supreme Court back in the 1970s, they found that it was unlawful to engage in electronic surveillance on American individuals unless you had a court order. Here it was clear that the president could have gotten a court order from the secret FISA court, he could have used other authorities to make sure that there was the right kind of process before spying was engaged in. And so I think there is a very important question that faces the American people today as to whether or not the president has broken the law.
Sen. Salazar even disagreed with the Administration’s justification that FISA warrants were cumbersome and time-consuming to obtain:
You know, the FISA court is controlled by the Department of Justice, and there — it’s a secret court, and they never had any trouble at all going to that court and getting warrants to conduct numerous searches. That has been going on ever since 9/11, ever since the FISA court was created. So there was no reason why a FISA court order could not have been entered in these cases.
He then defended our civil liberties:
[A]s we move forward to deal with the issues of terrorism, it’s also important for us to remember that the cornerstone of our liberties is in our Constitution and we should not trample on the Constitution.
The FISA bill Sen. Salazar voted for Friday night essentially legalizes the President’s warrantless surveillance program and allows the monitoring of conversations and e-mails of those within the United States. Under the warrantless NSA program acknowledged by the President, the monitored conversation had to involve someone suspected of terrorism. This new law doesn’t contain that limitation. As Law Professor and former U.S. Prosecutor Marty Lederman wrote at Balkanization:
….the key to understanding the FISA bill is that it will categorically exclude from FISA’s requirements any and all “surveillance directed at a person reasonably believed to be located outside of the United States,” even if the surveillance occurs in the U.S.; even if the surveillance has nothing whatsoever to do with Al Qaeda, terrorism or crime; and, most importantly, even if the surveillance picks up communications of U.S. persons here in the States — indeed, even if the surveillance is in part designed to intercept U.S. communications, so long as it is also “directed at” someone overseas.
I think Sen. Salazar owes us an explanation for his change of heart and his vote to support expanded surveillance of Americans without a court order.