Before the US House of Representatives, Jan. 30, 2008

Madame Speaker, I rise in opposition to the extension of the Protect America Act of 2007 because the underlying legislation violates the US Constitution.

The misnamed Protect America Act allows the US government to monitor telephone calls and other electronic communications of American citizens without a warrant. This clearly violates the Fourth Amendment, which states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Protect America Act sidelines the FISA Court system and places authority over foreign surveillance in the director of national intelligence and the attorney general with little if any oversight. While proponents of this legislation have argued that the monitoring of American citizens would still require a court-issued warrant, the bill only requires that subjects be “reasonably believed to be outside the United States.” Further, it does not provide for the Fourth Amendment protection of American citizens if they happen to be on the other end of the electronic communication where the subject of surveillance is a non-citizen overseas.

We must remember that the original Foreign Intelligence Surveillance Act was passed in 1978 as a result of the U.S. Senate investigations into the federal government’s illegal spying on American citizens. Its purpose was to prevent the abuse of power from occurring in the future by establishing guidelines and prescribing oversight to the process. It was designed to protect citizens, not the government. The effect seems to have been opposite of what was intended. These recent attempts to “upgrade” FISA do not appear to be designed to enhance protection of our civil liberties, but to make it easier for the government to spy on us!

The only legitimate “upgrade” to the original FISA legislation would be to allow surveillance of conversations that begin and end outside the United States between non-US citizens where the telephone call is routed through the United States . Technology and the global communications market have led to more foreign to foreign calls being routed through the United States . This adjustment would solve the problems outlined by the administration without violating the rights of US citizens.

While I would not oppose technical changes in FISA that the intelligence community has indicated are necessary, Congress should not use this opportunity to chip away at even more of our constitutional protections and civil liberties. I urge my colleagues to oppose this and any legislation that violates the Fourth Amendment of the Constitution.