Write a letter to your Representative about domestic espionage

I wrote a letter to my Congressman about the recent revelations of domestic wiretaps by American spies of American citizens without a warrant, authorized by the American President. I'm posting this letter so other people can read it and, if inspired, learn more about these issues and send a letter to their Representative.

You can read all about the domestic surveillance scandal in a New York Times article that broke two weeks ago, reproduced here. There are also several good posts by security ruminator (and computer security expert) Bruce Schneier on his weblog with pertinent links. Here's what he said about the NYT article: "This is a very long article, but worth reading. It is not overstatement to suggest that this may be the most significant violation of federal surveillance law in the post-Watergate era."

The upshot is that if you want to begin surveillance of an American citizen, you need a warrant; if you don't have probable cause, you can get a special warrant under the Foreign Intelligence Surveillance Act (FISA) from a secret court. All you have to do is show that someone may be the agent of a foreign power.

President George W. Bush repeatedly authorized a program in the National Security Agency (NSA) to wiretap American citizens without any warrant whatsoever. Recent news reports are that purely domestic calls were intercepted.

Aside from being illegal on its face because it violates FISA, the program smacks of an illegal search prohibited by the Fourth Amendment to the Constitution. The President says this is justified by executive "war powers" under Article 2 of the Constitution, but this would make a mockery of our checks and balances. By his legal theory, he can break laws that the Congress creates in the name of preventing terrorist attacks. What could he do next?

In a last great irony, now people charged with terrorism are using this revelation to assert that evidence against them was obtained illegally and should be thrown out. If you watch Law and Order you know that the worst thing that can happen to the lawyers is when the cops do some monkey business like not reading a suspect their Miranda rights. Cases get thrown out on these technicalities. If you want to read about how deep this goes, read this take from a former prosecutor.

So here is the letter I wrote. Crib from it, love it, weep for our country, laugh at the bleeding-heart. But the year is steadily churning backward from 2005 to 1984. We are the worse for it as a nation.

Dear Congressman Bishop:

I write to you asking for representation on a very important issue: the domestic surveillance of American citizens, without a warrant, by the chief executive. As you no doubt already know, this surveillance occurred (and still occurs) as a secret program in the NSA with no meaningful Congressional or judicial oversight.

There are practical reasons to abhor such a scheme. It violates the privacy of presumed-innocent American citizens. The potential for abuse is unchecked; for example, the system could be abused for partisan political purposes, or even for personal reasons, whether by the executive branch leadership or by individual NSA employees.

Still worse, the program is illegal. It violates explicit surveillance powers of the President set out in the Foreign Intelligence Surveillance Act. A warrant must be obtained to spy on Americans, and it can only be granted if the American is an agent of a foreign power. No such warrants were obtained.

The President justifies this illegal behavior by claiming that his emergency war powers in the war on terror trump Congress' passage of legislation restricting his freedom and barring such actions as criminal. In the long run, I believe this specious reasoning will be exposed. There are many reasons why, but the main one is that it makes a mockery of the rule of law.

A President defying Congress through emergency powers in a years-long emergency, in a war on terrorism that has no final enemy and no foreseeable final victory, is a grim and terrifying specter for our democratic ideals. To a crime without charges, a prison without a country, a cell without a number, a prisoner without a name, and torture without practical or moral justification, we can now add a wiretap without a warrant. Against these horrors we had set blind justice, that no violators would be safe from the law, that all victims would be secure in the law.

I appeal to your principles. Protect the innocent by taking this oversight seriously. Call for and participate in hearings on domestic espionage, FISA, and presidential war powers. Don't let the terrorists win by destroying the great principles our country was founded on. Believe in our system of government: in checks and balances, in innocent until proven guilty, in no person above the law.

Thank you for your thoughtful consideration.

Daniel Lewis