Bush Pushes To Turn FISA Into A Co-Conspirator
Megan Donovan
August 01, 2007
It astounds me that we are even discussing this. Did no one see this gradual erosion of American liberties; of our Constitution? Was it so subtle in its application that we are now addressed by a completely unchecked President who says “Yes, this is the constitution, crumpled into a ball in my hand. So meaningless was its purpose that I do not understand why you doubt my right and power to hand it back to you in origami carefully crafted to dazzle and confound you.”
President Bush seeks to “modernize” FISA by what he calls “modest” and “narrow” means in his new FISA Modernization Act (FISMA); changes he claims are required because of emerging technologies. Nothing could be farther from the truth. The proposed changes in FISA represent sweeping repeals of the Fourth Amendment protections FISA was enacted to oversee.
The notion that Americans would suffer civil liberty violations in being secretly monitored in the name of “foreign intelligence” is not newly conceived, it was THE purpose for FISA. FISA was enacted after it was discovered that American citizens (mostly “radicals” and political dissenters) were being unlawfully monitored and spied on. The Congress then realized these matters could not be left solely to the discretion of the executive.
Until 2005, this administration claimed publicly to have attained warrants for searches or surveillance conducted in intelligence activities. When the NSA program came to light, the President then claimed he had “inherent powers” as Commander-in-Chief to override the law. He has also claimed that the Authorization for Use of Military Force gave him the authority to subvert the FISA court.
Contrary to the completely false assertions the administration is making about FISA and its efficiency, it has been updated and no “technology” based reason to change the law exists. To merely accommodate new technologies (which is not necessary; FISA IS “technology neutral”) would not in any way require changes to the very foundation of the law; it’s single task being to protect the Fourth Amendment constitutional rights of Americans. FISA’s entire purpose is obliterated with the administration’s proposal to “modernize” it.
FISA has been amended dozens of times with 6 major amendments since 9-11, including major changes to “Provide Appropriate Tools Required to Interrupt and Obstruct Terrorism” in the USA Patriot Act passed by Congress in October 2001. Then in 2005 CALEA (the Communications Assistance for Law Enforcement Act) was extended to broadband Internet providers as well as providers of VoIP. A growing number of companies (Cisco, VeriSign, Aqsacom and many others) have developed new technologies and have produced state-of-the-art tools in intercepting advanced communications. The government’s preoccupation with wiretapping has been great business for the technology sector.
Does this sound like a technologically antiquated process?
The DoJ has provided a FISMA Fact Sheet that is vague, purports to further protect civil liberties and omits all of the proposed dramatic changes to the structure of the law.
First, the FISMA proposal does not contain a SINGLE initiative to further protect our liberties. Every request, without exception removes or degrades existing protections.
Much of the proposed legislation involves complex changes to the definition of “electronic surveillance” that would allow for untargeted and sweeping collection of communications. Subsequently, the government would be allowed to review and analyze that data without a warrant as that action would no longer be included in the FISA definition of “surveillance”. This would permit the government to acquire billions of American’s phone calls and emails without a warrant or court order because their position can be “we are not targeting a particular American.” Then they could sort, distribute, analyze, and listen to any or all in secret with no oversight whatsoever. So U.S. citizens can be data mined and then monitored as long as it is done en masse, thus eliminating the appearance of targeting a particular or individual American.
The new bill also states that the government does not need to ascertain if the sender or any recipients are in the U.S., allowing for unfettered, warrantless surveillance on any cell phone or e-mail communication that is purely domestic.
The bill also strikes down protections for American conversations that are captured inadvertently. The current FISA requirement is that these conversations be deleted within 3 days of acquiring them unless the government gets a court order. With the proposed legislation, the communications of Americans will not only be unconstitutionally collected in the most egregious manner, but then retained, reviewed, and can be distributed to law enforcement and other agencies.
FISA currently forbids the warrantless tapping of wires in the U.S. That means from city to city or trans-oceanic cables leaving the coast. That is forbidden in FISA 50 USC 1801 (f)(2). That section would be completely deleted in the President’s new bill.
In the interest of leaving no stone unturned, the bill also proposes the deletion of FISA requirement of warrants for the intentional acquisition of “information” by other means (interpreted to include video surveillance). This of course would eliminate judicial oversight of surveillance in private homes or buildings in the U.S.
We now know the administration was pretty successful in gaining the cooperation of our communications conglomerates in violating the Constitution with the warrantless NSA wiretapping. The administration has refused to give us those details, blocked testimony of the telecommunications companies and is seeking the dismissal of the civil lawsuits that represent our only remedy against companies that conspire with the government to subvert the constitution. The fact that these companies can be held liable is the only deterrent in place to keep them from being complicit. The President’s proposed legislation will give the broadest blanket immunity from civil and criminal liability to these companies or anyone giving assistance to the government to this end.
Why does anyone need immunity if no laws are being broken?
The administration also claims that it is so bogged down in the FISA process it cannot effectively manage its critical intelligence gathering. This is a resource issue. It could be solved by applying more resources to FISA without destroying the protections in place with FISA. This does beg the question of how the administration can be unreasonably back-logged with FISA paperwork when they have a history of not seeking FISA orders, approval or warrants to perform their secret Terrorist Surveillance Program.
To top off the outrage, the bill will also effectively eliminate existing judicial review, stripping federal and state courts - except the FISA court - of the power to hear existing claims against that program or any other classified intelligence activities. Being orchestrated here is the re-writing of FISA to act as co-conspirator in unconstitutional surveillance. Then they would ensure the (newly) unlawful FISA court stands as the only judicial arbiter in the cases of government surveillance. With this bill, the administration turns FISA into the proverbial fox guarding the hen house.
There is little chance of this passing but it is critical to fully understand the power and control this administration is determined to attain. The timing is interesting as well. This has been in the planning stage for some time but there is a sense of urgency within the administration now. It seems logical that they would do all they can to get this pushed through before the bottom completely falls out of the DoJ.
Illegal searches and surveillance with no warrant and no probable cause are unconstitutional. There is no wiggle room here, no valid position to take in debating it. There is no exception to the Fourth Amendment that carves a path for what the administration wants here. This is an attempted repeal of the FISA protections.
Before you are overly comforted by its slim-to-none chance of passing, remember they are already doing it. They have been doing it since 2004. They merely seek legislation that matches Mr. Bush’s claim of unprecedented power.
President Bush seeks to “modernize” FISA by what he calls “modest” and “narrow” means in his new FISA Modernization Act (FISMA); changes he claims are required because of emerging technologies. Nothing could be farther from the truth. The proposed changes in FISA represent sweeping repeals of the Fourth Amendment protections FISA was enacted to oversee.
The notion that Americans would suffer civil liberty violations in being secretly monitored in the name of “foreign intelligence” is not newly conceived, it was THE purpose for FISA. FISA was enacted after it was discovered that American citizens (mostly “radicals” and political dissenters) were being unlawfully monitored and spied on. The Congress then realized these matters could not be left solely to the discretion of the executive.
Until 2005, this administration claimed publicly to have attained warrants for searches or surveillance conducted in intelligence activities. When the NSA program came to light, the President then claimed he had “inherent powers” as Commander-in-Chief to override the law. He has also claimed that the Authorization for Use of Military Force gave him the authority to subvert the FISA court.
Contrary to the completely false assertions the administration is making about FISA and its efficiency, it has been updated and no “technology” based reason to change the law exists. To merely accommodate new technologies (which is not necessary; FISA IS “technology neutral”) would not in any way require changes to the very foundation of the law; it’s single task being to protect the Fourth Amendment constitutional rights of Americans. FISA’s entire purpose is obliterated with the administration’s proposal to “modernize” it.
FISA has been amended dozens of times with 6 major amendments since 9-11, including major changes to “Provide Appropriate Tools Required to Interrupt and Obstruct Terrorism” in the USA Patriot Act passed by Congress in October 2001. Then in 2005 CALEA (the Communications Assistance for Law Enforcement Act) was extended to broadband Internet providers as well as providers of VoIP. A growing number of companies (Cisco, VeriSign, Aqsacom and many others) have developed new technologies and have produced state-of-the-art tools in intercepting advanced communications. The government’s preoccupation with wiretapping has been great business for the technology sector.
Does this sound like a technologically antiquated process?
The DoJ has provided a FISMA Fact Sheet that is vague, purports to further protect civil liberties and omits all of the proposed dramatic changes to the structure of the law.
First, the FISMA proposal does not contain a SINGLE initiative to further protect our liberties. Every request, without exception removes or degrades existing protections.
Much of the proposed legislation involves complex changes to the definition of “electronic surveillance” that would allow for untargeted and sweeping collection of communications. Subsequently, the government would be allowed to review and analyze that data without a warrant as that action would no longer be included in the FISA definition of “surveillance”. This would permit the government to acquire billions of American’s phone calls and emails without a warrant or court order because their position can be “we are not targeting a particular American.” Then they could sort, distribute, analyze, and listen to any or all in secret with no oversight whatsoever. So U.S. citizens can be data mined and then monitored as long as it is done en masse, thus eliminating the appearance of targeting a particular or individual American.
The new bill also states that the government does not need to ascertain if the sender or any recipients are in the U.S., allowing for unfettered, warrantless surveillance on any cell phone or e-mail communication that is purely domestic.
The bill also strikes down protections for American conversations that are captured inadvertently. The current FISA requirement is that these conversations be deleted within 3 days of acquiring them unless the government gets a court order. With the proposed legislation, the communications of Americans will not only be unconstitutionally collected in the most egregious manner, but then retained, reviewed, and can be distributed to law enforcement and other agencies.
FISA currently forbids the warrantless tapping of wires in the U.S. That means from city to city or trans-oceanic cables leaving the coast. That is forbidden in FISA 50 USC 1801 (f)(2). That section would be completely deleted in the President’s new bill.
In the interest of leaving no stone unturned, the bill also proposes the deletion of FISA requirement of warrants for the intentional acquisition of “information” by other means (interpreted to include video surveillance). This of course would eliminate judicial oversight of surveillance in private homes or buildings in the U.S.
We now know the administration was pretty successful in gaining the cooperation of our communications conglomerates in violating the Constitution with the warrantless NSA wiretapping. The administration has refused to give us those details, blocked testimony of the telecommunications companies and is seeking the dismissal of the civil lawsuits that represent our only remedy against companies that conspire with the government to subvert the constitution. The fact that these companies can be held liable is the only deterrent in place to keep them from being complicit. The President’s proposed legislation will give the broadest blanket immunity from civil and criminal liability to these companies or anyone giving assistance to the government to this end.
Why does anyone need immunity if no laws are being broken?
The administration also claims that it is so bogged down in the FISA process it cannot effectively manage its critical intelligence gathering. This is a resource issue. It could be solved by applying more resources to FISA without destroying the protections in place with FISA. This does beg the question of how the administration can be unreasonably back-logged with FISA paperwork when they have a history of not seeking FISA orders, approval or warrants to perform their secret Terrorist Surveillance Program.
To top off the outrage, the bill will also effectively eliminate existing judicial review, stripping federal and state courts - except the FISA court - of the power to hear existing claims against that program or any other classified intelligence activities. Being orchestrated here is the re-writing of FISA to act as co-conspirator in unconstitutional surveillance. Then they would ensure the (newly) unlawful FISA court stands as the only judicial arbiter in the cases of government surveillance. With this bill, the administration turns FISA into the proverbial fox guarding the hen house.
There is little chance of this passing but it is critical to fully understand the power and control this administration is determined to attain. The timing is interesting as well. This has been in the planning stage for some time but there is a sense of urgency within the administration now. It seems logical that they would do all they can to get this pushed through before the bottom completely falls out of the DoJ.
Illegal searches and surveillance with no warrant and no probable cause are unconstitutional. There is no wiggle room here, no valid position to take in debating it. There is no exception to the Fourth Amendment that carves a path for what the administration wants here. This is an attempted repeal of the FISA protections.
Before you are overly comforted by its slim-to-none chance of passing, remember they are already doing it. They have been doing it since 2004. They merely seek legislation that matches Mr. Bush’s claim of unprecedented power.
Print
Email
