The Justice Act

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2962671131_d1993324dc.jpgTea Party Expressers who rallied in the capitol last week to protest big government will have another chance to defend "freedom of the individual in this great nation" next week when the Senate Judiciary Committee considers proposed amendments to federal surveillance laws.  The Judicious Use of Surveillance in Counterterrorism Efforts (JUSTICE) Act introduced yesterday by Wisconsin Senator Russ Feingold would limit the virtually unilateral power of law enforcement and national security agencies to conduct surveillance on American citizens, under the Patriot Act and FISA, with no meaningful judicial review.  It would also repeal the retroactive immunity granted last year to telecom companies that broke the law by enabling the Bush Administration's warrant-less surveillance program. (The bill is here, the sponsor's outline of it here, and analyses here and here.)     
   
I'm not going to review descriptions and analysis of the bill already available elsewhere. I do want to underscore one crucial, general problem it addresses - the concentration of unaccountable power in the executive branch, which trades a lot of liberty for little if any apparent security, or even efficiency.   
   
Consider the FBI's misuse of national security letters, which give FBI agents power to seize personal information about you from your bank, telephone company, or ISP, for example, without a court order.  The Justice Department's Inspector General has found repeated abuses of NSL's, which is a lot less surprising or instructive than the excuse offered by FBI general counsel Valerie E. Caproni:  According to a 2007 report in the Washington Post, Caproni actually blamed the abuses partly on the agency's expansive power to operate without judicial review:  She "attributed the 'F report card' from (Inspector General) Fine partly to the bureau's inexperience in conducting its national security work in secrecy, away from a judicial system that threatens to expose any flaws."

The threat of exposure - of "flaws," mistakes and gross abuses by law enforcement since 9/11-- is one subtext of national security debates today, especially those involving torture or surveillance.  The threat of exposure made telecom immunity essential: as the riveting, 2009 Inspectors General's report on the President's extra-legal, warrant-less surveillance program noted, the program, secretly initiated in 2001 and partly exposed in 2005, included still classified surveillance described only as "other intelligence activities," which could conceivably be exposed by lawsuits against the telecoms. (The threatened resignations of Acting Attorney General James Comey and FBI Director Robert Mueller were, in part, reactions to these "other intelligence activities.")  The Inspectors General's report also noted the difficulty of evaluating the effectiveness of this secretive, unsupervised program.

Congress responded to news of the warrent-less surveillance program by authorizing it, in effect, retroactively - passing amendments to FISA that allowed executive branch agencies to continue conducting wholesale surveillance of Americans as well as foreign nationals with very little pesky second guessing by courts that might "expose the flaws" in their operations.  Opposition to the JUSTICE act will partly reflect opposition to that exposure.  Judicial oversight of law enforcement and intelligence agencies doesn't deprive the government of power (as opponents will claim;) oversight diffuses power, (courts are government agencies too) in the hope of ensuring its relatively fair, rational, and effective exercise, and the freedom that the right wing claims to cherish.

(Photo: Flickr User cliff1066)

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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