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December 28, 2012

Senate Reauthorizes Surveillance Law for Five More Years Without Reform

Posted in: Privacy,Secrecy,War on Terrorism

Sen. Ron Wyden giving floor statement on FISA reauthorization

The United States Senate reauthorized a surveillance law that grants the government expanded authority to collec communications of foreign persons outside the US. It also is believed to permit the government to engage in dragnet surveillance of Americans’ communications. The program under the FISA Amendments Act is shrouded in immense secrecy, with there being very little information on whether safeguards against eavesdropping on citizens’ communications are being followed by intelligence agencies like the National Security Agency (NSA).

Sen. Ron Wyden of Oregon was one of a few senators who took to the floor yesterday and this morning to urge amendments be passed to the law. He highlighted how the Office of the Director of National Intelligence (ODNI) would not give him a rough estimate of the number of phone calls and emails swept up in the interception of communications under this law. He pointed out how it was impossible to know if any “wholly domestic communications” had been collected under the law because the ODNI declined to answer. He also recounted how NSA director Keith Alexander had exaggerated how the agency safeguards Americans’ privacy while conducting surveillance when he spoke at a major tech conference in July of this year.

Even more significant, Wyden warned against the fact that rulings by the FISA court, which reviews and approves of government requests to engage in surveillance, are completely secret.

“The public has absolutely no idea what the court is actually saying,” Wyden said. “What it means is the country is in fact developing a secret body of law so Americans have no way of finding out how their laws and Constitution are being interpreted.”

Sen. Jeff Merkley of Oregon sponsored an amendment that would have required the rulings by the FISA court to be made public in some form. The Senate rejected the amendment yesterday evening.

Sen. Patrick Leahy of Vermont tried to advance an amendment that would change the sunset provision of the law from five years to three years, decreasing the amount of time inbetween reauthorizations. This might have increased oversight for a law that most senators know very little about. Leahy’s amendment was rejected by the Senate too.

Leading the charge for reauthorization without any reforms was Democratic Senator Dianne Feinstein of California. In the tradition of Vice President Dick Cheney and other Bush neoconservatives, she blustered about how America remained under threat of a terrorist attack. She read a list of terrorists, as if the law had helped lead to their arrests but never stated clearly that was what happened. She mentioned Najibullah Zazi, who attempted to blow up the subway in New York City. It was all aimed at disingenuously suggesting that adding these amendments would put America at risk of attacks.

Feinstein manufactured this idea that Wyden and others were trying to make public the names of people being subjected to NSA surveillance. She suggested that what the senators trying to reform the law wanted to do is really destroy the program so that it would no longer be an “intelligence tool” available. Of course, there would be no reason to fear the collapse of the program if details on it were divulged if nothing abusive, illegal, or improper was being done under the guise of the law.

As The Guardian’s Glenn Greenwald summarized:

It’s hard to put into words just how extreme was Feinstein’s day-long fear-mongering tirade. “I’ve never seen a Congressional member argue so strongly against Executive Branch oversight as. Sen Feinstein did today re the FISA law,’ said Micah Zenko of the Council on Foreign Relations. Referring to Feinstein’s alternating denials and justifications for warrantless eavesdropping on Americans, the ACLU’s Jameel Jaffer observed: “This FISA debate reminds of the torture debate circa 2004: We don’t torture! And anyway, we have to torture, we don’t have any choice.”

On top of that, she was more than willing to shower praise on her colleague, Republican Sen. Saxby Chambliss of Georgia, someone who had worked tirelessly with her over the past years to ensure the intelligence communities were able to engage in domestic surveillance on the people of the world in whatever manner they deemed necessary.

The “debate” – which the leadership of the Senate reluctantly squeezed in for senators like Wyden – again showed how much bipartisan consensus on national security matters exists among the political class and how languid and nonchalant they are when anyone warns about risks about civil liberties. In their mind, the FISA Amendments Act, passed in 2008, was proposed to provide safeguards and oversight and halt warrantless wiretapping that took place under the Bush administration and so there was no reason to go to the trouble of adding additional oversight now.


In a hearing on secret law in April 2008, then-Senator Russ Feingold of Wisconsin condemned this development in government:

…The notion of ‘secret law’ has been described in court opinions and law treatises as ‘repugnant’ and ‘an abomination.’ It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. And when it became apparent in the middle of the 20th century that federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public, for the express purpose of preventing a regime of ‘secret law.’…

He took particular issue with secret law being created by the FISA court because the court’s interpretations of FISA law “governs the government’s ability in intelligence investigations to conduct wiretaps and search the homes of people in the United States.” So, national security state lackeys like Feinstein or Chambliss are fully aware of the development of secret law in America and either do not want to believe it exists or pretend it does not exist to serve intelligence agencies.

Finally, to make it even more clear how divorced from the tradition of upholding and safeguarding civil liberties senators like Feinstein or Chambliss happen to be, it is worth revisiting Justice Louis D. Brandeis’ dissenting opinion in the case of Olmstead v. United States, where Brandeis sought to define privacy rights under the Fourth and Fifth Amendments.

Written in 1928, it touched upon the evolution of technology and how phone calls deserved just as much protection from warrantless eavesdropping as mail deserved protection from warrantless intrusions. It also outlined the very human reasons why government should endeavor to protect people’s privacy:

…The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth…

Were Brandeis alive today and to talk of privacy with such candor, he would be smeared disingenuously by senators as wanting intelligence agencies to be hampered so the country might be attacked by terrorists again.

All that the senators urged the Senate to support were very modest reforms. They required very little of the intelligence agencies, and in fact, each senator supporting amendments displayed great deference to national security matters. Yet in the War on Terrorism, there can be no room for suggesting that intelligence agencies might be engaged in wholesale violations of Americans’ civil liberties. So, in the same way that Republican senators have come to the aid of the Obama administration to ensure that the military’s power to indefinitely detain and hold citizens suspected of providing “substantial support” for terrorism without charge or trial survives a lawsuit, Feinstein and GOP senators were all too willing to lead the charge and vigorously defend government surveillance powers no matter what the cost may be to civil liberties.

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