Last September, to no one’s surprise, the US House of Representatives passed the FISA Amendments Act Reauthorization Act for 2012 on a vote of 301-118. On 28 December 2012, scheduled to be hidden as much as possible from the US citizenry, the legislation passed the US Senate, on a vote of 73-23. The Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) permits the government to wiretap any conversation of any US citizen without first obtaining a probable-cause warrant so long as the government believes the conversation includes at least one person located outside of the US. The legislation, which will almost certainly be signed into law by President Barack Obama (he’s repeatedly claimed an unamended FAA is a national security priority), extends the government’s warrantless wiretapping program for another five years.
In early 2008, presidential candidate and then-US Senator Barack Obama (D-Illinois) pledged to filibuster any legislation that granted retroactive immunity to telecommunications companies that participated in then-President George W. Bush’s illegal warrantless wiretapping program. By July 2008, Obama had secured the Democratic presidential nomination and legislation being considered in the US Senate would grant just such retroactive immunity. Not only did Obama not follow through on his filibuster promise, he actually voted against a filibuster and for the legislation.
That legislation was the FISA Amendments Act of 2008. Not only did it grant the telecommunications carriers retroactive immunity, it legalized President George W. Bush’s warrantless wiretapping program. it was supposed to expire in four years. It’s been all downhill since. As Glenn Greenwald, writing for the Guardian notes, the Obama administration at every turn “has invoked secrecy and standing doctrines to prevent any courts from ruling on whether the warrantless eavesdropping powers granted by the 2008 law violate the Constitution.”
“In other words, the warrantless eavesdropping ‘scandal’ that led to a Pulitzer Prize for the New York Times reporters who revealed it ended not with investigations or prosecutions for those who illegally spied on Americans, but with the Congressional GOP joining with key Democrats (including Obama) to legalize most of what Bush and Cheney had done,” writes Greenwald.
In general, the FAA requires the US FISA court to automatically approve requests for electronic surveillance that a law enforcement agency claims is terrorism-related. The law enforcement agency is not required to identify the target of the surveillance and can begin surveillance up to one week before actually making the surveillance request. The FISA court’s rulings are secret and if it should happen to reject a surveillance request, the FAA allows the surveillance to continue pending appeal. The only limitation — in theory (we don’t know because implementation is a classified secret) — is that the law enforcement agency must believe that at least one party of the communication is outside of the US.
It’s important to note that the FAA — in most cases — applies to digital communications. If the government wants to listen in on your landline conversations, it has to obtain a warrant, as called for by the Fourth Amendment to the US Constitution. Same for paper mail. But not for email, texts, web searches, or any other electronic communication. Why are mostly outmoded forms of communication afforded greater protections than the ones we actually use? As near as I can tell, there’s a lot of hand-waving and wild gesticulation about terrorists using email and mobile phones, not paper mail and landlines. And besides, it’s much easier for the government to cast the widest net if it’s all bits.
It’s a matter of scale, according to Julian Sanchez, a policy analyst at the Cato Institute:
“… the FAA authorizes large scale surveillance of Americans’ communications. Supporters of the act suggested again and again that this can’t be true, because the law requires NSA surveillance programs to have a foreign ‘target.’ But this is based on a misunderstanding of what ‘target’ means in FISA. As former Deputy Attorney General David Kris explains at length in his book on the law, the ‘target’ of a surveillance program under FAA is typically just the foreign group — such as Al Qaeda or WikiLeaks — that the government is seeking information about. The FISA court approves general procedures for surveillance, but it’s NSA agents who decide which particular phone lines and email accounts will be wiretapped, and there is no explicit requirement that these particular phones and email addresses be foreign — only the program’s overall target. And of course, there is something historically very strange about imagining that surveillance can only violate the rights of named targets: The Founders abhorred ‘general warrants,’ which they passed the Fourth Amendment to abolish, precisely because these warrants authorized searches of people and homes who were not specifically named targets, exactly as the FAA does.”
To be clear: While the text of the FAA is public information, implementation of the law is a closely guarded secret and highly classified.
Wyden floor statement on FISA Reauthorization Act and proposed amendments.Four stand-up US Senators attempted to modify the FAA:
- US Senator Rand Paul (R-Kentucky) proposed extending Fourth Amendment guarantees to all electronic communications.
- US Senator Ron Wyden (D-Oregon) proposed two amendments: One that would require the National Security Agency (NSA) to provide a rough estimate of how many US citizens were being surveilled under the FAA; and one that would prohibit the NSA from surveilling US citizens in the US without a warrant.
- US Senator Patrick Leahy (D-Vermont) proposed limiting the extension to three years.
- US Senator Jeff Merkley (D-Oregon) attempted to force the government to declassify FISA court opinions containing significant interpretations of the FAA — something the Obama administration promised in 2010-11. The Obama administration admitted last July that the FISA court ruled that FAA surveillance had violated the Fourth Amendment rights of an unknown number of Americans.
None of these proposed modifications are radical, and each is clearly warranted. And each measure failed dramatically.
US Senator Dianne Feinstein (D-California), chair of the Senate Select Committee on Intelligence, out Cheneyed Dick Cheney’s worst, falsely stating, “We have four days to get this bill signed by the president or this section ceases to function. Four days.” That was total and complete nonsense — as was her allusion that any delay or amendments would “destroy the program” — and I have to wonder why my friends in California continue to reelect her.
Feinstein seemed especially exercised at the prospect of public disclosure of the government’s secret interpretation of the FAA: “You put all this out in public and the next thing is more, more, and more, and then the program is destroyed.” In response to Wyden’s proposed amendments, Feinstein responded, “I know where this goes. Where it goes is to destroy the program.”
“In other words, Obama successfully relied on Senate Republicans (the ones his supporters depict as the Root of All Evil) along with a dozen of the most militaristic Democrats to ensure that he can continue to eavesdrop on Americans without any warrants, transparency, or real oversight,” writes Greenwald. “That’s the standard coalition that has spent the last four years extending Bush/Cheney theories, eroding core liberties and entrenching endless militarism: Obama + the GOP caucus + Feinstein-type Democrats.”
Greenwald cites a tweet by Jameel Jaffer of the American Civil Liberties Union (ACLU) comparing Feinstein’s misguided and false tirade to President George W. Bush’s Attorney General John Ashcroft’s infamous “phantoms of lost liberty” speech in 2001:
“To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.”
Trevor Timm, reporting for the Electronic Frontier Foundation (EFF), aptly summed up the vote, writing, “But make no mistake: This vote was nothing less than abdication by Congress of its role as watchdog over Executive power, and a failure of its independent obligation to protect the Bill of Rights. The FISA Amendments Act and the ongoing warrantless spying on Americans has been, and will continue to be, a blight on our nation and our Constitution.”
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National disgrace: Five more years of warrantless wiretapping was originally published by ARTS & FARCES internet on Monday, 31 December 2012 at 9:39 AM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)