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Electronic Surveillance Modernization Act

By:
Date:
Location: Washington, DC


ELECTRONIC SURVEILLANCE MODERNIZATION ACT -- (House of Representatives - September 28, 2006)

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Mr. PAUL. Mr. Speaker, Congress is once again rushing to abandon its constitutional duty to protect the constitution balance between the executive, legislative, and judicial branches of government by expanding the executive's authority to conduct warrantless wiretaps without approval from either a regular federal court or the Foreign Intelligence Surveillance Act (FISA) court. Congress's refusal to provide any effective checks on the warrantless wiretapping program is a blatant violation of the Fourth Amendment and is not necessary to protect the safety of the American people. In fact, this broad grant of power to conduct unchecked surveillance may undermine the government's ability to identify threats to American security.

Instead of creating standards for warrantless wiretapping, H.R. 5825 leaves it to the President to determine when ``imminent'' threat requiring warrantless wiretapping exists. The legislation does not even define what constitutes an imminent threat; it requires the executive branch to determine when a threat is ``imminent.'' By passing this bill, Congress is thus abdicating its constitutional role while making it impossible for the judiciary to perform its constitutional function.

According to former Congressman Bob Barr, thanks to Congress' failure to establish clear standards for wiretapping, under H.R. 5825 Ð``.....simply making an international call or sending an e-mail to another country, even to a relative (or a constituent) who is an American citizen, will be fair game for the government to listen in on or read. Moreover, this legislation allows the government to conduct secret, warrantless searches of American citizens' homes in a broad range of circumstances that are essentially undefined in the legislation.''

Mr. Speaker, I do not deny that there may be certain circumstances justifying warrantless wiretapping. However, my colleagues should consider that current law allows for warrantless wiretapping in emergency situations as long as a ``retroactive'' warrant is sought within 72 hours of commencing the surveillance or the warrantless surveillance commences within 15 days after Congress declares war. If there are legitimate reasons why the current authorization for warrantless wiretapping is inadequate, then perhaps Congress should extend the time allowed to wiretap before applying to the FISA court for a ``retroactive'' warrant. This step could enhance security without posing the dangers to liberty and republican government contained in H.R. 5825.

The requirement that, except in extraordinary circumstances, a warrant be obtained from the FISA court does not obstruct legitimate surveillance efforts. It is my understanding that FISA judges act very quickly to consider applications for search warrants, even if the applications are faxed to their houses at three in the morning. Applications for FISA warrants are rarely rejected. In 2005, the administration applied for 2,074 warrants from the FISA court. Of those 2 where voluntarily withdrawn and 63 where approved with modifications; the rest were approved. The FISA court only rejected four applications for warrants in the past four years; and one of those rejected warrants was subsequently partially approved.

Warrantless wiretapping may hinder the ability to identify true threats to safety. This is because experience has shown that, when Congress makes it easier for the federal government to monitor the activities of Americans, there is a tendency to collect so much information that it becomes impossible to weed out the true threats. My colleagues should consider how the over-filing of ``suspicious transaction reports'' regarding financial transactions hampers effective anti-terrorism efforts. According to investigative journalist James Bovard, writing in the Baltimore Sun on June 28, ``[a] U.N. report on terrorist financing released in May 2002 noted that a `suspicious transaction report' had been filed with the U.S. government over a $69,985 wire transfer that Mohamed Atta, leader of the hijackers, received from the United Arab Emirates. The report noted that `this particular transaction was not noticed quickly enough because the report was just one of a very large number and was not distinguishable from those related to other financial crimes.' '' Congress should be skeptical, to say the least, regarding the assertion that allowing federal bureaucrats to accumulate even more data without having to demonstrate a link between the data sought and national security will make the American people safer.

In conclusion Mr. Speaker, because H.R. 5825 sacrifices liberty for the illusion of security, I must oppose this bill. I urge my colleagues to do the same.

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