WHEREAS, Hawaii has a long and distinguished history of protecting and expanding human rights, civil liberties, and constitutional protections, often serving as a beacon for our country's citizens when their rights, liberties, and protections are threatened; and

WHEREAS, in addition to the Fourth Amendment to the United States Constitution which protects American citizens against unreasonable searches and seizures, the Hawaii Constitution in Article I, Section 7, protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches, seizures, and invasions of privacy and in Article I, Section 6, recognizes the right of the people to privacy and prohibits infringement of that right without the showing of a compelling state interest; and

WHEREAS, the people of this State are in a unique position to understand the gravity and horror of a massive, lethal attack, as the December 7, 1941 attack on Pearl Harbor was the last time American territory was attacked by foreign forces prior to the events of September 11, 2001; and

WHEREAS, after the tragic events of September 11, 2001, hasty reaction led to the adoption of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (or "USA Patriot Act") and Homeland Security Act, and the promulgation of several executive orders and departmental rules and regulations has led the federal government to sacrifice fundamental human rights and civil liberties; and

WHEREAS, the USA Patriot Act, even in its recently amended and renewed form, defines "domestic terrorism" so broadly as to potentially apply to certain acts of civil disobedience by lawful advocacy groups, which may be labeled as terrorist organizations and subjected to invasive surveillance, signal and electronic intelligence gathering, harassment, and criminal penalties for protected political advocacy; and

WHEREAS, the USA Patriot Act grants unchecked power to the Secretary of State to designate domestic groups as "terrorist" organizations and greatly expands the government's ability to conduct secret searches without warrants; and

WHEREAS, the Justice Department has issued a directive limiting compliance with the Freedom of Information Act, citing the threat of terrorism as justification, and thereby limiting disclosure of public documents and records covering all government information, much of which has no connection to national security or law enforcement; and

WHEREAS, the former United States Attorney General unilaterally, without consulting Congress, eased long-standing intelligence guidelines which were put in place in 1976 as a result of gross intelligence abuses by the Federal Bureau of Investigation and issues surrounding the Watergate Hotel break-in by operatives linked to the Nixon White House; and

WHEREAS, guidelines now allow Federal Bureau of Investigation agents to spy on religious groups, political rallies, and organized meetings without any suspicion that the organization is involved in terrorism or any other criminal activity; and

WHEREAS, in December 2005, the New York Times disclosed that, in late 2001, President George W. Bush, relying on a Congressional resolution authorizing him to use force to prosecute the "war on terrorism," authorized the National Security Agency to intercept messages if one of its supervisors believed there was a link to al-Qaida; and

WHEREAS, in authorizing such surveillance by the National Security Agency, the President has circumvented the Foreign Intelligence Surveillance Act of 1978 by which Congress created a special court for issuance of warrants for this type of surveillance; and

WHEREAS, the Foreign Intelligence Surveillance court has reviewed more than 10,000 warrant applications since its creation, has denied the application in only fifteen cases, and has exercised its powers to retroactively approve warrant applications after the surveillance has begun or been completed; and

WHEREAS, President Bush has attempted to justify his use of warrantless surveillance by arguing that his constitutional power to make war supersedes the limitations imposed by the Foreign Intelligence Surveillance Act; and

WHEREAS, President Bush has made no attempt to explain how the Foreign Intelligence Surveillance Act impedes his ability to prosecute the "war on terror" or what safeguards exist to prevent him from using the power he claims to be constitutionally superior to infringe on the constitutionally guaranteed civil liberties of American citizens; and

WHEREAS, the Republican-controlled Congress has refused to conduct an inquiry into the facts underlying the President's surveillance order, including the likely cooperation of some of America's leading telecommunications providers such as AT&T and MCI, or the legality of the order or the cooperation of the telecommunication firms; and

WHEREAS, the United States Attorney General has so far declined to appoint a special prosecutor to investigate the National Security Agency surveillance program; and

WHEREAS, in Federalist No. 10, dated November 22, 1787, James Madison wrote that "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity"; and

WHEREAS, a president does have an obligation to assess the constitutionality of statutes, but when that president secretly decides a measure is unconstitutional and neglects to say so, much less why, that president undermines the very system of public consent for which we are fighting; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-third Legislature of the State of Hawaii, Regular Session of 2006, that:

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the President of the United States, the Director of the National Security Agency, the United States Attorney General, the President of the United States Senate, the Speaker of the United States House of Representatives, and to each member of Hawaii's congressional delegation.

Report Title:

Civil Liberties; Warrantless Surveillance