“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
-4th Amendment to the Constitution, ratified 1791
In a move that I suspect will be looked back on by future generations as one of the great sellouts of American democracy, the Democratic-controlled House of Representatives voted Friday on a ‘compromise’ FISA bill that essentially says that violating the Constitution is okay, as long as you’re rich enough or powerful enough.
I’m quite disgusted by this whole event, and I discuss the background, and list the entire roster of shame in favor of it, below the fold.
The Fourth Amendment, as stated above, essentially states that the government cannot spy on or search its citizens without first obtaining a warrant. That warrant should only be given if there is probable cause for a search, i.e. evidence that the target of the search has violated or is planning to violate the law. Furthermore, the warrant must be targeted to a specific persons, places or things, and cannot be open-ended.
The Fourth Amendment, and in a large part the entire American Revolution, came about due to Great Britain’s use of open-ended warrants known as writs of assistance. These writs gave blanket authority for their holder to search anyone and anything they chose, and they had no expiration date.
It should be obvious what’s fucked up about such a power. It gives its holder the ability to conduct ‘fishing expeditions’ in search of wrongdoing. A writ-holder can keep looking into a suspect/victim’s background until they find something wrong. Even if they don’t find anything wrong, the writ permits and excuses any harassment or harm that is caused to the target. In short, a writ-holder is above the law.
The Fourth Amendment is protection against such abuses. It is the legal reason the government can’t just come kick down your door whenever they feel like it.
What does this have to do with the so-called ‘FISA Amendment Bill’? In December 2005 The New York Times released a bombshell story: Bush Lets U.S. Spy on Callers Without Courts:
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
Emphasis mine. There are two aspects here that are particularly disturbing. First, the NSA is not supposed to conduct surveillance on people within the United States. Second, as mentioned above, any surveillance on people within the United States is supposed to be done with court approval.
Wingnuts like to argue that this step was necessary, because acquiring warrants would be an undue burden that could cost time and possibly lives, though arguments in their favor usually involve invoking some sort of ridiculous ‘24‘ scenario.
But is acquiring a warrant really a burden? Not particularly; a special court was introduced to handle such requests, the FISA court. FISA (Foreign Intelligence Surveillance Act) was implemented in 1978 as a check upon excessive Presidential abuse of surveillance power, inspired by Richard Nixon’s warrantless domestic spying on activist groups. FISA lays down the rules for surveillance relating to foreign threats (such as terrorism) both here and abroad, and involved the creation of the FISC (Foreign Intelligence Surveillance Court) to meet secretly to hear warrant requests.
The Bush administration claims it was too difficult to go through the FISC (from the NYT article again),
Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.’s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
Emphasis mine again. If that sentence doesn’t sound like a ‘fishing expedition’, you’re definitely not paranoid enough. Think about it this way: if you talk to or email a person abroad, the administration believes it can record everything you say or do in those conversations.
How hard is it to get a FISA warrant? Quoting from Wikipedia,
In the period 1979-2006 a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved (sometimes with modifications; or with the splitting up, or combining together, of warrants for legal purposes), and only 5 were definitively rejected.
Evidently it’s not too hard to get a FISA warrant, but is it fast? It turns out that one does not even need to get a warrant in advance; as long as one petitions the court within a reasonable amount of time after surveillance begins, it can still be approved.
The only reason anyone can think of why the Bush administration didn’t go through the court is that their demands for massive ‘fishing’ of thousands of people’s correspondence would be considered absurd by anyone with any knowledge of U.S. law. Rather than trying to work within the law, or change it, the administration decided it would just be easier to break it.
Here’s where the telecom companies come into the story. In order to achieve this massive eavesdropping program, the Bush administration needed the cooperation of the major telecom companies through which all the communications pass. Soon after the NYT revealed that the spy program existed, other news outlets broke the story that many of the major communications companies willingly aided in the spying. From CNN,
Telecommunications companies are helping the National Security Agency collect information as part of a program President Bush secretly approved in 2002, a source familiar with the program said.
The program, which involves domestic surveillance of Americans and other people who communicate with terror suspects abroad, requires the agency to collect, trace and analyze data from these companies.
Which companies were involved? At least AT&T, Verizon and BellSouth participated willingly in the program. In 2007 the Bush administration pushed an amendment to FISA called the “Protect America Act” which in essence legalized their domestic spying program. This legalization did not include, however, any forgiveness for previous lawbreaking: in other words, it was now legal to spy without a warrant, but the previous acts were still illegal. When the “Protect America Act” expired in February 2008 due to a sunset clause, an extension was proposed — and the right-wing decided to hold the security of the U.S. hostage.
The extension of the bill was bundled with a completely independent requirement that it should include “retroactive immunity” for the big telecom companies’ violation of the law. In essence, the Republicans said that the only way they would allow for an extension of “Protect America” — supposedly vital to our national security — is if the telecom companies were protected from criminal and civil lawsuits for their role.
One would, and should, argue that the two parts of the extension are completely unrelated. If immunity is justified, it should be able to stand on its own merits, and not hide behind national security. The Republicans didn’t see it that way, though, and scuttled a version of the extension in February which had been proposed without immunity built in.
Let’s fast forward to this week. Another amendment to FISA/extension of “Protect America” came to the floor of the House, one which still effectively includes telecom company immunity. This bill, labeled a “compromise”, passed easily in the House, with many Democrats joining an almost unanimous Republican coalition. To their credit, 128 Democrats voted against this dismantling of the Fourth Amendment, but 105 voted for it. It now passes to the Senate, where it will almost certainly pass.
Telecom immunity could be viewed as the last piece of the puzzle required to recreate the old ‘writs of assistance’. Now not only does the government feel that it can spy on you at will, and enlist major corporations to do so, but that they are immune to any consequences for their actions. If you wanted to live in a police state, this is a good step forward.
Here’s a list of all the Representatives who voted yes to give major corporations a free pass to spy on you (italics are Republicans, roman are Democrats):
Lungren, Daniel E.
Postscript: Don’t count on Obama saving us from this travesty of justice. In a statement he made yesterday, he said:
Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance — making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.
It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives — and the liberty — of the American people.
Get that? “I’m opposed to immunity, but I’m going to vote for it.” “If you make me President, I promise not to abuse these powers of surveillance.” Epic fail of inspiration.