To:Senator Susan Collins
Ranking Member
Committee on Homeland Security
United States Senate
Monday, February 11, 2008
Dear Sen. Collins:
I am writing to you today to express my profound opposition to retroactive immunity for Telecom companies who participated in illegal and unconstitutional violation of the privacy of millions of US citizens. The fact that this planned immunity is attached to a revision of FISA is doubly insulting to Us, The People, and to the Constitution which We did ordain and establish, to secure, among other things, the blessings of Liberty and Justice.
During the discussion of the Amendment (S.2248) to the FISA bill, proposed by the Chairman of the Intelligence Committee, Mr. Rockefeller, and Co-Sponsored by Republican Kit Bond of Missouri, the following remarks were made by Mr. Bond, as recorded in the Congressional Record and viewable at
http://thomas.loc.gov/cgi-bin/query/F?r110:1:./temp/~r110VC2xN5:e285680:
which is page S258: [ NB: a copy of this letter can be found online at http://tinyurl.com/35pv2p for your convenience in accessing any hyperlinks included]
SENATOR BOND: There were questions raised: Well, if I go abroad, can the intelligence community tap my phone without a court order? Well, first of all, the intelligence community is not going to be tapping anybody's phone or trying to listen in on any--intercept any conversations unless they have good, solid information that that phone is in a terrorist's hands. They have to have intel before they even look at that conversation. That intel could come in many forms which I won't describe here, but that--first of all, if you are abroad, you would not have been targeted unless you had certain reasonable connections with a terrorist activity or a terrorist who would give the Attorney General and the intelligence community the basis for asserting that there was a terrorist content to the phone conversation.
The portions I have emphasized above represent the position of the Whitehouse and of the Republican senatorial delegation, with the possible exception of Sen. Specter of Pennsylvania. The vote on Cloture to this discussion (vote #3 on January 28, 2008, 04:43 PM) shows that the two Maine senators share this position. Let’s look at it on its own:
First of all, the intelligence community is not going to be tapping anybody's phone or trying to listen in on any--intercept any conversations unless they have good, solid information that that phone is in a terrorist's hands.
Let me ask you, Senator Collins, why was FISA created in the first place? How good is your memory?
During the Watergate Era, Director John Edgar Hoover used his power at the FBI to engage in unlawful surveillance of the great humanitarian and laborer on behalf of the cause of peace, Dr. Martin Luther King, Jr, among many other innocent persons who happened to oppose, in perfectly lawful and honorable ways, the policies of the Nixon Administration and the conduct of an illegal war founded on falsified evidence of threats to America, in ways so uncannily similar to the fraudulent casus belli of the present war-of-choice.
The following quote is taken from the report of the Church Committee — no, it hasn’t been slid down the memory hole, it really happened, and it is still on the record! This quote is located in the
SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES
UNITED STATES SENATE
TOGETHER WITH ADDITIONAL, SUPPLEMENTAL, AND SEPARATE VIEWS
APRIL 26 (legislative day, April 14), 1976
MAJOR FINDING D:
USING COVERT ACTION TO DISRUPT AND DISCREDIT DOMESTIC GROUPS
Subfinding (d) (lines 55 thru 60):
The FBI's campaign against Dr. Martin Luther King, Jr. began in December 1963, four months after the famous civil rights March on Washington, 55 when a nine-hour meeting was convened at FBI Headquarters to discuss various "avenues of approach aimed at neutralizing King as an effective Negro leader." 56 Following the meeting, agents in the field were instructed to "continue to gather information concerning King's personal activities ... in order that we may consider using this information at an opportune time in a counterintelligence move to discredit him." 57
About two weeks after that conference, FBI agents planted a microphone in Dr. King's bedroom at the Willard Hotel in Washington, D.C. 58 During the next two years, the FBI installed at least fourteen more "bugs" in Dr. King's hotel rooms across the country. 59 Physical and photographic surveillances accompanied some of the microphone, coverage. 60
Let me quote from the opinion of the Supreme Court in the contemporary UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972) as delivered by Justice Lewis Powell: (emphasis mine)
History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on 2511 (3):
"As I read it - and this is my fear - we are saying that the President, on his motion, could declare - name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government." 15
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
Finally, Senator, let me quote from the Constitution of these United States, Article I, Section 9, Clause 3:
“No Bill of Attainder or ex post facto Law shall be passed.”
I understand that the precedent of Justice Chase’s opinion in Calder v Bull gives four examples, in defining ex post facto laws, of laws which add, increase, or facilitate the conviction and punishment for acts that were lawful when committed.
But clearly, by the very words used to enter it into the Constitution, an ex post facto law is simply one which tampers with the definition of criminality vis-à-vis a certain activity, ostensibly for the advantage of whoever is promoting the new law.
Are you going to tell me that it’s OK for a President to pardon himself for crimes committed in office? Shall we accept that he should be able to pardon underlings who commit crimes for his benefit upon his orders?
Senator, encouraging and enticing commercial entities of great power and opportunity to commit crimes against the Fourth Amendment and against the FISA as it stood at the time of the act cannot be legally or constitutionally sanctified by changing the law after the fact !!
You can’t change the past. You have no right to change the law’s provenance on past events.
Thank you for your time and attention to these matters —
Sincerely,
Your Constituent