Five more years: Senate reauthorizes broad warrantless electronic spying powers
By End the Lie
You can thank the Senate for giving the federal government five more years of unbelievably broad warrantless electronic surveillance powers, continuing the erosion of the most essential rights Americans once enjoyed.
On Friday the Senate passed the FISA Amendments Act which gives the government the ability to electronically monitor the phone calls, e-mails and other communications of Americans without a probable cause warrant as long as they can claim that one of the parties to the communication is believed to be outside of the U.S.
The U.S. government has actually admitted that they breached the Fourth Amendment at least once when conducting this type of surveillance. Of course, one might rightly argue that every single instance of warrantless surveillance is a flagrant breach of the Fourth Amendment.
All of this surveillance is done under the guise of “acquir[ing] foreign intelligence information” although when one amendment attempted to hold the government accountable for how many times the communications of Americans had been intercepted, it was shot down.
The House approved the Act all the way back in September and since President Barack Obama claims that the warrantless surveillance powers are a national security necessity, he is expected to speedily sign the legislation before it expires.
David Kravets, writing for Wired’s Threat Level, considers the amendments offered in the Senate to be a purely ceremonial attempt to sweep aside opposition.
“Over the past two days, the Senate debated and voted down a handful of amendments in what was seen as largely political theater to get Sen. Ron Wyden (D-Oregon) to lift a procedural hold on the FISA Amendments Act legislation that barred lawmakers from voting on the package,” Kravets writes.
The American Civil Liberties Union (ACLU) criticized the vote in a statement from Michelle Richardson, ACLU legislative counsel.
“The Bush administration’s program of warrantless wiretapping, once considered a radical threat to the Fourth Amendment, has become institutionalized for another five years,” said Richardson.
Among the other amendments rejected by the Senate include one to extend the powers for three instead of five years and one by Wyden which would have blocked U.S. intelligence agencies from reviewing communications of Americans caught up in the widespread surveillance.
“The amendment I fought to include would have helped bring the constitutional principles of security and liberty back into balance and intend to work with my colleagues to see that the liberties of individual Americans are maintained,” said Wyden.
Unfortunately, the majority of the Senate apparently couldn’t care less about the liberties of individual Americans or any constitutional principles whatsoever.
As passed, the FISA Amendments Act allows monitoring to take place without the government having to even identify the individual target or facility they want to spy on.
The government can also begin conducting surveillance a week before they even file the request.
If the highly secretive FISA court rejects the request – which is about as likely as Obama protecting Americans from indefinite detention – surveillance can continue during the appeals process.
To top it all off, the rulings of the FISA court are completely and totally secret.
To make matters even worse, as Kravets points out, “The government has also interpreted the law to mean that as long as the real target is al-Qaeda, the government can wiretap purely domestic e-mails and phone calls without getting a warrant from a judge. That’s according to David Kris, a former top anti-terrorism attorney at the Justice Department.”
Kris made this abundantly clear in the revised edition of National Security Investigations and Prosecutions for 2012 in writing:
For example, an authorization targeting ‘al Qaeda’ — which is a non-U.S. person located abroad—could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone.
To put it simply, Kris, who headed the Department of Justice’s National Security Division between 2009 and 2011, is saying that the FISA Amendment Act gives the U.S. government almost limitless spying power.
Ironically, the National Security Agency (NSA) told lawmakers that disclosing how the powers are actually being used in practice would be a violation of Americans’ privacy.
In a letter, Charles McCullough, the Inspector General of the Office of the Director of National Intelligence, said that the NSA inspector general “and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.”
Currently, the most major legal challenge has been brought by a coalition of groups including the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and others.
A federal judge previously agreed with the Obama administration in ruling that the coalition doesn’t have the legal standing to even bring a challenge in court. The judge specifically ruled that they couldn’t actually prove that they were subject to the warrantless surveillance and thus couldn’t bring the case.
However, the groups continued to fight and appealed the case to the 2nd U.S. Circuit Court of Appeals in which they argued that they have to make costly trips overseas in an attempt to maintain attorney-client confidentiality since their other communications could be targeted by the NSA.
“The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights,” notes Kravets.
When ruling last year, the appeals court did not rule on the merits of the case, although they did say that the plaintiffs indeed have standing to bring the case and have reason to fear the surveillance program.
The case is now pending an opinion from the U.S. Supreme Court although I won’t hold my breath since the Supreme Court has refused to hear a case brought by the Electronic Frontier Foundation (EFF) challenging a similar warrantless wiretapping program.
Similarly, since the Supreme Court ruled jails are “allowed to conduct invasive strip searches on new inmates without any suspicion, regardless of the offense(s) the individual alleged committed,” I don’t expect them to defend our rights in this case either.
While this might seem like a pessimistic view for some, I maintain that it is a realistic one given the Supreme Court’s apparent disdain for the rights of Americans.
UPDATE: As expected, Obama signed the bill without delay. According to Hillicon Valley, Obama signed the bill on Sunday, Dec. 30. “President Obama signed a bill on Sunday that would reauthorize for another five years a measure that gives U.S. intelligence authorities the ability to conduct surveillance on suspected terrorists abroad without a court order,” reports Hillicon Valley.
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