In the Senate confirmation yesterday of Obama Attorney General nominee Eric Holder, Senator Jon Kyl of Arizona asked Holder about his legal opinion regarding the FISA Amendments Act. This FISA Amendments Act, for those of you joining in late, is the law passed in July of 2008 that permits a president to order spying on any person and searches of any person’s property without a warrant for periods of up to 67 days. When a judge finally makes a review of said spying and searches after 67 days, even if s/he declares it to be improper for various reasons (including a finding that US citizens have been spied upon) the government suffers no penalty for it and even gets to keep whatever information it has obtained.
That does not match my reading of the Fourth Amendment to the U.S. Constitution. How does it match the reading of the 4th amendment by Obama’s nominee for AG? My transcription from C-Span coverage, starting around 1 hour and 34 minutes in:
Senator Jon Kyl: You indicated that comments that you had made in a speech you had given on June 13, 2008 were directed to the status of the law pre-FISA-modifications from the legislative branch when Congress later, I believe it was the next month, modified the FISA law. There was an explicit type of search that was provided allowing warrantless monitoring of suspected communications of international terrorists, predicated on the principle that the 4th amendment gives greater leeway to intelligence investigations of foreign threats. Do you agree with that general principle, but more importantly in the context of our conversation, do you believe the new law is constitutional and if confirmed will you support its enforcement?
Attorney General Nominee Eric Holder: Yeah. I believe that the law is constitutional. One of the things I think is somewhat regrettable is that the program — that I’ve not been read into and don’t know all the dimensions of it, but as I understand it that the program is a very, very useful tool, a potential tool for us in fighting terrorism. I think that what is unfortunate is that we could have had that tool congressionally sanctioned at a much earlier stage. I think that, as we saw in the Steel Seizure concurrence of Justice Jackson, the president has his greatest power when he acts consistent with congressional directives, and I think that in this instance that’s instructive. Had the administration come to Congress and asked for that enhanced authority many years before, I have no doubt that the Congress would have granted him that tool. Having done that, though, and having had Congress say that this is an appropriate thing to do, as I said I think that is a very useful tool, and one that we will make great use of.
By golly, the administration of Barack Obama is turning out to be very sensitive to civil liberties issues, just as sensitive as Barack Obama himself, the Senator who voted for the FISA Amendments Act. Eric Holder has regrets about the FISA Amendment Act. He feels passage of the FISA Amendments Act is unfortunate… because he thinks it should have been passed sooner.
A police state that spies on you just like the Bush administration did. Is that the Change You Can Believe In? It appears to the be the Change You Are Expected to Swallow.
Remind our new President that there are still some Americans around who have actually read the Constitution. Meet us at the southwest corner of 9th Street and Pennsylvania Avenue on Inauguration Day for a demonstration on the parade route asking President Barack Obama to reconsider his plans and respect the Bill of Rights, uphold civil liberties, and honor his oath of office to “preserve, protect and defend the Constitution of the United States.” We’ll be there all day. Getcher details here.