Demanding Answers from the Spy Program's New Decider

The meeting with Justice Department officials was billed as a briefing, but ACLU staffers report that the government was not at all forthcoming and offered virtually no new information.
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ACLU staff members held a meeting yesterday with Justice Department officials regarding the expanded wiretapping power given to Attorney General Alberto Gonzales under the new warrantless spying law that was hastily passed by Congress before its recess and signed by President Bush two weekends ago. The meeting was billed as a briefing, but our staffers report that the government was not at all forthcoming and offered virtually no new information.

That's why the ACLU has formally requested a face-to-face meeting with the attorney general to ask him how he intends to address the grave threats to Americans' civil liberties posed by this new, chilling law -- the result of Congress capitulating to the Bush administration and granting even more unchecked power than it had sought, in violation of our constitutional system of checks and balances.

The new warrantless spying law, the product of a cowed Congress that panicked in the face of a fear-mongering Bush administration, handed over a vast and startling amount of power to Attorney General Gonzales.

The attorney general - not a court or an independent body - now has the power to issue year-long orders for entire spying programs that don't even identify the people or the facilities that will be targeted. The law only requires that the spying programs are "directed at" or "concern" someone outside the United States. Even the Foreign Intelligence Surveillance Court (FISC) - the court that has been charged with reviewing such activities for the past three decades - has been cut out of the process. When it comes to spying and our civil liberties, Alberto Gonzales is now "the decider."

This new law gives the executive branch the power to eavesdrop on telephone calls and intercept e-mails - without court or congressional review, or even a showing of suspicion that anyone is suspected of terrorism - as long as the "real" target is someone "reasonably believed" to be outside the country.

The ACLU is gravely concerned that Congress failed to mandate any protections for Americans whose conversations are swept up in these dragnets and instead left the responsibility to protect our privacy and constitutional freedoms solely with Alberto Gonzales. Our nation's founders devised our American system of checks and balances because they knew that vesting broad, unchecked power in one person or one branch of government would lead to mistakes and abuse. Congress not only ignored the wisdom of our founders, they ceded broad new powers to an attorney general with a track record of contempt for the Constitution and civil liberties. And we need to hold Congress accountable for its complicity and capitulation. The law goes far beyond the wiretapping of foreign-to-foreign calls, and despite the rhetoric of the Bush administration's talking points, calling it a "FISA fix" is simply disingenuous. It gives the executive branch the power to spy on Americans' international communications and makes Alberto Gonzales both judge and jury of the Bush administration's use of this new power.

The ACLU has some questions for Mr. Gonzales:

* We want to know whether he in fact plans to use his new authority to collect all international communications coming into and out of the United States.

* We want to know whether he plans to return to the FISC when he discovers that a certain line or person has significant contact with the United States, and

* We want to know how information gathered on people in the United States will be used and what civil liberties safeguards will be put in place for instances in which information is collected on individuals who have no intelligence value to the government.

Congress left all of these questions to the attorney general's discretion, and we are eager to discuss with him how he intends to deal with the civil liberties issues that arise when the government eavesdrops on American communications.

Last week, the ACLU also filed legal papers requesting that the FISC disclose its recent legal opinions and orders that address the scope of the government's surveillance authority - the same orders that supposedly fueled the Bush administration's sudden push for this "emergency" legislation. One of the clubs used to cudgel the quiescent Democrats into passing this law was a claim that a secret opinion issued earlier this year by the FISC required immediate legislative action.

While a significant amount of FISC material is properly and legitimately classified, our request seeks the portions of the FISC orders that would not raise any security concern to the extent that the records only address legal issues or do not need to be classified. Releasing this information would allow Americans to meaningfully assess the votes cast by their members of Congress and become knowledgeable participants in the vital debate about warrantless government spying and our civil liberties. The American public has a right to know what the FISC said was legal and what it disallowed.

For these same reasons, Alberto Gonzales should accept our invitation and meet with us. As attorney general, he swore an oath to "support and defend the Constitution of the United States," and the people of the United States need to understand how the person who is solely responsible for protecting our constitutional rights under this expanded spying program plans to do so, consistent with that oath.

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