Passavant Calls Out “Bad Legislation” – Hobart and William Smith Colleges \
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Passavant Calls Out “Bad Legislation”

An op ed written by Paul Passavant, associate professor of political science and chair of the department, appeared in the Finger Lakes Times on Thursday, July 10, regarding the proposed FISA Amendment. He explains the history of the FISA Act: “In 1978, in the wake of Watergate and revelations that intelligence agencies misused their powers to spy on ordinary Americans, Congress enacted the Foreign Intelligence Surveillance Act or ‘FISA.’ This law regulates spying done for national security purposes while ensuring that we do not lose our Fourth Amendment rights in the process.” He considers the amendment to it to be “bad legislation” and points out some of its potential flaws. Among them, he says, “The FISA Amendment has left experts – including those who have worked in the Department of Justice and overseen the FISA process – guessing about what it will permit.” Passavant joined the faculty in 1997 after receiving his Ph.D. and M.A. from the University of Wisconsin, Madison. He earned his B.A., with distinction and high honors, from the University of Michigan. His primary areas of expertise are law and politics, American institutions and socio-political theory. He has had two books published: No Escape: Freedom of Speech and the Paradox of Rights (NYU Press, 2002), and Empire’s New Clothes: Reading Hardt and Negri (Routledge, 2004, co-edited with Professor Jodi Dean). The full op ed appears below.


Finger Lakes Times “FISA Amendment: The fix is” Paul A. Passavant • July 10, 2008 Like many other Genevans, I went to Red Jacket to see Sen. Hillary Clinton last week. After her speech, she greeted a number of people in the crowd. Just a couple feet from her, I asked my senator twice what her position would be on the amendment to the Foreign Intelligence Surveillance Act (“FISA” is the formal name of the legislation that the Patriot Act amended), now before the U.S. Senate. Twice, grimacing at the question, Senator Clinton did not answer. First of all, Senator Clinton was acting and was being treated as a celebrity. While Hillary Clinton gave a strong fight for the presidency, we should not forget that she works for us as our U.S. Senator. We have a right to know how she will vote on legislation. Next, what is “FISA”? In 1978, in the wake of Watergate and revelations that intelligence agencies misused their powers to spy on ordinary Americans, Congress enacted the Foreign Intelligence Surveillance Act or “FISA.” This law regulates spying done for national security purposes while ensuring that we do not lose our Fourth Amendment rights in the process. The proposed FISA Amendment will change this law further. (The Fourth Amendment gives us the right not to be searched by the government unless there is “probable cause” that we are committing or have committed a crime; and it requires a judicial warrant of some particularity before law enforcement is allowed to search us.) The FISA Amendment is bad legislation. It is being pushed through Congress quickly and with little public debate, yet it could vastly expand the government’s ability to spy on Americans. I seriously doubt that congressional representatives voting on the bill (Rep. Michael Arcuri, D-24 of Utica, voted for it in the House) actually understand much of it due to the speed of their action and the complexity of the legislation. Why the rush? Is Congress reaching for symbols of security in an election year while our constitutional rights pay the price? The bill appears to be an attempt to legalize the National Security Agency’s Terrorists Surveillance Program. It came to light in late 2005 and was, in turn, an updated and rebranded version of Total Information Awareness – which, once discovered, was shut down by Congress because of its totalitarian aspirations. Now that the outrage accompanying the discovery of the surveillance program has died down, Congress seems poised to sweep the problem under the rug. Only, the fix is worse. In the current bill, the purpose of surveillance is no longer connected to terrorism (or a state enemy). It is simply “foreign intelligence,” a very broad goal. Additionally, the FISA Amendment has left experts – including those who have worked in the Department of Justice and overseen the FISA process – guessing about what it will permit. Will it allow for a “vacuum cleaner” approach that dragnets all communications coming into or out of the U.S., which would include phone calls and emails to which an American is a party? Or does it require something more particularized? Is a legitimate “facility” one of (or all of) the 25 cableheads by which international calls enter the U.S.? Or is it a 10-digit phone number? Can an organization be deemed a “person” for the purposes of FISA? Then if only 10 percent of Greenpeace’s membership, say, is inside the U.S., is it “reasonable” to believe that the organization-person is “located” “outside” the U.S., scooping Americans into the net? But for all the confusion, one thing is clear. The FISA Amendment would give legal immunity to the telecommunication companies that assisted the Bush administration’s illegal spying on Americans. This illegal behavior was based on the spurious theory that the president can simply ignore laws he does not like. In 1978, the original authors of FISA knew how Nixon and Hoover spied on innocent Americans, and for this reason they made it criminal to engage in unwarranted spying and provided civil penalties to be levied against any telecommunication companies that might assist attempts by government officials to evade the law. This is the wrongful behavior that the FISA Amendment immunizes, and those who vote for it are saying they condone. In sum, Senator Clinton, I ask you whether our civil liberties, our laws, and indeed our Constitution, are worth the paper they are written on? Passavant teaches constitutional law at Hobart and William Smith Colleges, where he is chair of the Political Science Department.