FISA Reform and STACLU

There are a bunch of bills in Congress right now to update FISA to allow for warrantless wiretaps. The ACLU, naturally opposes this program. That leads Glib Fortuna to posture and preen and call them names, but without a shread of substance in his post. He quotes this comment from a CNS article about these proposals:

"By reforming FISA to permit the necessary and constitutional use of warrantless foreign surveillance renewable for fixed periods of time, Congress can assure that the executive branch has the tools it needs to address 21st Century threats," Alt said, "while providing the oversight necessary to assure that the program is not abused."

And he responds:

This makes sense. The ACLU doesn't.

But of course, Alt's statement doesn't make sense at all. First of all, foreign surveillance is already entirely legal and warrantless. There is no legal requirement for the CIA to get a warrant to engage in surveillance or wiretapping that takes place outside of the United States, nor have I ever heard anyone, even the ACLU, suggest that there should be any such requirement. The controversy over the current NSA program is due to the fact that it involves surveillance of American citizens who make contact with those the government thinks (or claims to think) have terrorist connections.

Now, should the government be listening to such conversations? If there is good reason to believe that the person on the other end of the phone genuinely is involved in terrorism, absolutely. No one that I know of disputes this, despite the hysterical rhetoric from the right about how anyone who thinks the government should be required to get warrants is a terrorist sympathizer. But the point of requiring warrants, as the Constitution does, is that it reduces the risk of our government going after people arbitrarily. It requires that the government go to an impartial judge and show him at least enough evidence to justify that a warrant be issued. This is a vital safeguard for our liberties.

We have already reduced the legal safeguards that apply in normal law enforcement significantly when it comes to foreign intelligence gathering. The FISA law reduced those requirements down to a bare minimum by allowing the evidence to be presented to a court that operates in secret and by allowing the use of retroactive warrants. The Patriot Act further reduced those safeguards by allowing the use of administrative subpeonas and national security letters and by reducing the standard by which judges evaluate warrant requests.

The amazing thing here is that even with those seriously diminished safeguards, the administration still refuses to comply with the law. And now Congress is looking to just do away with those protections completely, which would mean absolutely no oversight on anything the administration wants to do. Think about this for a moment: what the administration's apologists want is for the administration to be able to wiretap anyone they want without anyone ever knowing they did it.

So what happens if they decide to wiretap political enemies and use those taps for blackmail? And don't tell me this is some crazy hypothetical, it's already happened in this country. The FBI, through the COINTELPRO program, already did this to numerous civil rights leaders in the 60s. That program was blatantly illegal, but these people want to make it legal. There would be no recourse at all for such actions, no way of even knowing they ever did it.

And to make things worse, they also support the government's current claim that as long as they say it has to do with national security, they don't ever have to reveal to anyone, even to a Federal judge sworn to secrecy, what they're really doing and that their actions can never be challenged in court by anyone. These arguments lead, quite literally, to a government that can do anything it wants to anyone it wants and without anyone having any right to even find out what they did, much less challenge it.

This, obviously, is precisely the sort of unlimited and arbitrary authority that the Constitution, full of checks and balances and powers separated between the branches of government, was designed to prevent. And now we have men who claim to be patriots clamoring for it and savaging those who oppose them as terrorist sympathizers and bedwetting liberals. It's time to redefine our terms here. Those who seek to destroy the system of safeguards built in to our constitution to prevent tyranny are the anti-Americans; those who seek to preserve those protections that the founding fathers knew were the only way to avoid tyranny are the true patriots.


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I don't understand why you continue to take this guy seriously. His name is taken from an obscure Star Wars character; he's probably one of those fanboys that dresses up for conventions.

And now we have men who claim to be patriots clamoring for it and savaging those who oppose them as terrorist sympathizers and bedwetting liberals. It's time to redefine our terms here.

Oh, yes it certainly is. Lets take terrorist sympathizer first. What do you think makes those criminals happier - effecting visible change on our way of life, or if they were to see Americans and other westerners just going about their daily lives without throwing away the rights and freedoms that make this country free?

Bedwetting liberal? So, I happen to be a liberal on many issues - many other people who oppose throwing our constitution down the toilet are far from it. And the even further absurd, bedwetting - I am not the one pissing myself in fear to the point I want to destroy the principles that make this nation. Thats bloody cowardice.

I think I have figured out what is motivating W in all of this: He hates our freedom.<\>

What other possible motivation could there be?

Frankly, I think the Admin. has been doing this without warrants, not because of terrorist concerns, but to eavesdrop on political rivals and opposition groups. That would be the most likely reason one would object to obtaining the warrants.

By King Spirula (not verified) on 08 Sep 2006 #permalink

I agree with you on that. The only reason they could have for not wanting to ask the FISA court for warrants is that they think they'll be turned down. Given that the FISA court is a virtual rubber stamp and is extremely unlikely to turn down any warrant request that is in any way related to terrorism, that suggests that these warrants must be for non-terrorism related things.

I think it's a little surprising that Glib takes the position that in a hypothetical future presidency, if President Hillary Clinton wanted to spy, without warrants, on top members of the republican party, james dobson's personal life, Glib and his cohorts, Newt Gingrich's cell phone, etc, Glib thinks she should be allowed to do so, with no oversight of any kind.

Interesting position there, Glib, I'll have to mull it over.

After reading Glib's post yesterday, I noticed that the people who support giving up our liberties for a little bit of security are the same ones supporting our distruction of Iraq's security so they could have some freedom. When I commented so, his only response was "explain".

By camanintx (not verified) on 08 Sep 2006 #permalink

The government has moved to stay judge Taylor's NSA TSP and domestic spying halt. PDF here.

Reading the PDF it sure appears that they will be arguing that safety is an issue and that prior Forth Amendment cases have given them wiggle room.

The only reason they could have for not wanting to ask the FISA court for warrants is that they think they'll be turned down.

I believe that it can be inferred that the gov is using a programmatic approach that is not conducive to individual FISA requests unless they submitted one for all 300M of us. Extending into the foreseeable future.

This is also interesting regarding authorization to monitor. Read Section 4.1(a)(4) There sure are a lot of redacted lines in that area.

Once again, I would remind everyone what "unnamed Administration sources" had to say at the time the story broke: Not that the FISA Court wouldn't approve, but that it couldn't.

I think you've got it nailed, Ted, which is also a good reason for all the Administration harrumphing about changed technology: They are using some type of data miner that looks for keys in all types of electronic signals traffic.

The only real question that remains is whether they are truly just monitoring multinational traffic where the foreign end has a known intelligence link, or whether they are trolling everything. I suspect the former, which brings up a big question.

If they are only looking at multinational calls with one end in the US, why should FISA be impacted at all? These calls can be monitored from England or Japan without implicating FISA at all. There is still a lot that needs filling in.