I have been asked on the campaign trail exactly how I plan to set myself apart as a candidate running against an opponent with the Conservative record that my opponent, Dean Heller, has. I have challenged back that, although his record may be recognized as Conservative by many, he has not voted consistently to protect the Constitution. A glaring example is HR 6304, which was passed by the House of Representatives today with Rep. Dean Heller voting AYE. I would not have supported this bill, as it is a further erosion of our Constitutional rights as citizens of these United States. I have been unable to find the official text of the bill, but did find a summary from the ACLU website (may be a little bit biased in their description, but it was all I could find at this time…govtrack.us did not have the text of the bill available for me to use). You can go to my campaign blog at www.jamessmack.com for highlighted points:

• H.R. 6304 permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.

• H.R. 6304 permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.

• H.R. 6304 contains a general ban on reverse targeting. However, it lacks stronger language that was contained in prior House bills that included clear statutory directives about when the government should return to the FISA court and obtain an individualized order if it wants to continue listening to a US person’s communications.

• H.R.6304 contains an “exigent” circumstance loophole that thwarts the prior judicial review requirement. The bill permits the government to start a spying program and wait to go to court for up to 7 days every time “intelligence important to the national security of the US may be lost or not timely acquired.” By definition, court applications take time and will delay the collection of information. It is highly unlikely there is a situation where this exception doesn’t swallow the rule.

• H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever it gathered in the meantime.

• H.R. 6304 ensures the dismissal of all cases pending against the telecommunication companies that facilitated the warrantless wiretapping programs over the last 7 years. The test in the bill is not whether the government certifications were actually legal – only whether they were issued. Because it is public knowledge that they were, all the cases seeking to find out what these companies and the government did with our communications will be killed.

• Members of Congress not on Judiciary or Intelligence Committees are NOT guaranteed access to reports from the Attorney General, Director of National Intelligence, and Inspector General.

Where do I begin except that this is Unconstitutional, flying directly in the face of the Fourth Amendment to the Constitution, protecting us from unreasonable search and seizure. We hear the argument all the time from the President and Members of Congress that we live in dangerous times, and the need for the Patriot Act and expansion of FISA is necessary to keep us safe and secure here at home. I argue that if it is necessary to violate the Constitution to keep us safe, what are we fighting for the right to protect?

We are on very dangerous ground here, a slippery slope that is going to lead to a wholesale dismissal of the Constitution by those that we have elected to protect and defend the Constitution. Don’t the majority of those that we have elected to represent us remember that they took an oath to protect the Constitution against all enemies, both foreign and domestic? I really try not to sound like an alarmist, but seeing bills like the above pass through the House so easily, with bi-partisan support, and only the far left screaming that this is Unconstitutional…what else am I supposed to be? For once, I would have to side with the Left in believing that this is further erosion of our rights, putting even more power into the hands of the Executive Branch.

So, the next time I am asked what sets me apart from my “Conservative” opponent, I simply will state that on issues such as FISA, the Patriot Act, and Real ID, just to name a few, I will remember my oath to protect and defend the Constitution against all enemies, foreign AND domestic. As Phyllis Schlafly so nicely stated in 1964 at the Republican National Convention, “We need a choice, not an echo.” I represent a clear choice for voters in Nevada CD2 on August 12th.

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