source [rquoter] Why the FISA Amendments Act is Unconstitutional The FISA Amendments Act gives the government nearly unfettered access to Americans’ international communications. Government surveillance that sweeps up the communications of U.S. citizens and residents should be conducted in a manner that comports with the Constitution, and in particular with the Fourth Amendment, which prohibits “general warrants” and unreasonable searches. The FISA Amendments Act allows the government to engage in mass acquisition of U.S. citizens’ and residents’ international communications with virtually no restrictions. Some of the main problems with the law are: Unidentified Targets The government can intercept U.S. residents’ international telephone and email communications without having to even name the people or groups it is monitoring or show its targets are suspected of wrongdoing or connected to terrorism . The target could be a human rights activist, a media organization, a geographic region, or even a country. Nothing requires the government to identify its surveillance targets at all. Anywhere, USA The government can intercept U.S. communications without having to identify the facilities, phone lines, email addresses, or locations to be monitored. Theoretically, the government could use the new law to collect all phone calls between the U.S. and London, simply by saying to the FISA court that it was targeting someone abroad and that a significant purpose of its new surveillance program is to collect foreign intelligence information. No Judicial Oversight Our system is one of checks and balances. The constitution requires real judicial oversight to protect people who get swept up in government surveillance. The new law gives the FISA court an extremely limited role in overseeing the government’s surveillance activities. Rather than reviewing individualized surveillance applications, the FISA court is relegated to reviewing only the government’s “targeting” and “minimization” procedures. It has no role in overseeing how the government is actually using its surveillance power. Even if the FISA court finds the government’s procedures deficient, the government can disregard this and continue illegal surveillance while appealing the court’s determination. No Limits There are no real limits on how the government uses, retains, or disseminates the information that it collects. The law is silent about what the government can keep and what it has to get rid of. It fails to place real limits on how information can be disseminated and to whom. This means the government can create huge databases that contain information about U.S. persons obtained without warrants and then search these databases at a later point. Not Just Terrorism The law does not limit government surveillance to communications relating to terrorism. Journalists, human rights researchers, academics, and attorneys routinely exchange information by telephone and e-mail that relates to the foreign affairs of the U.S. (Think, for example, of a journalist who is researching the “surge” in Iraq, or of an academic who is writing about the policies of the Chávez government in Venezuela, or of an attorney who is negotiating the repatriation of a prisoner held at Guantánamo Bay.) The Bush administration has argued that the new law is necessary to address the threat of terrorism, but the truth is that the law sweeps much more broadly and implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind. Purely Domestic The law gives the government access to some communications that are purely domestic. The government can acquire communications so long as there is uncertainty about the location of the sender or recipient. A reasonable law would have required any uncertainty to be resolved in favor of the privacy rights of U.S. citizens and residents, but this law requires uncertainty to be resolved in favor of the government. Thousands or even millions of purely domestic communications are likely to be swept up as a result. Immunity for Lawbreakers The law immunizes the telecoms that participated in the Bush administration’s illegal warrantless wiretapping program. Telecommunication corporations that violated the law and allowed the government to trample the privacy rights of thousands of Americans should be held accountable for their activities. Letting them off the hook only invites further abuse in the future. [/rquoter]
The ACLU? Sorry, I don't see them as a credible source for information. What about the Supreme court deciding on passing to hear on lawsuits regarding Bush's NSA program? You haven't addressed that. And immunity doesn't mean you can't subpeona the telecom companies, just means they aren't liable. Why make them get in the way of all this. At the end of the day, we all want a way to allow us to collect intelligence on potential terrorist activities that involved international communications. I think we all agree on that. So, now I don't see how the bill is bad in that regards. But if the above post that there really isn't any real oversight is true, and that the FISA court doesn't have any authority in reality - that would be a problem. But I am not convinced...and I haven't seen any truth to that claim. Where in the FISA bill does it say that gov't can ignore the court or that it really has no power to prevent abuse? Based on what clause or article of the bill???? I thought the issue was the immunity clause. So now, I guess a journalist, if they are talking to a terrorist, have a problem since they can't guarantee that no one is listening in. Hmmmm. Then I guess the journalist is going to have to travel over to speak to that person face to face. I can live with that.
Of course you do and this pretty much obviates the need for further discussion. I'm sure Ollie North still thinks he was doing God's work when he was violating the Constitution in spite of the pesky liberals and the commie pinkos like the ACLU and Congress. In his mind, he is still the hero of his story. In the same way, I could never have a meaningful discussion with August Pinochet or Ossama bin Laden because we fundamentally approach the world with reference frames for our values. We could go on and on about the other points, but in the end, you will still think that national security and preservation of order is more important than the Bill of Rights, or that the pesky 4th Amendment shouldn't apply to wiretapping, and I will still disagree. When the ACLU and EFF suits come before the courts, and all of the drama has played out, one of us will feel vindicated, and the other embittered. No back-and-forth of discussion here will change that.
oh god - your link doesn't even quote or point to one part of the legislation - it's all just scare language. No where has anyone should a passage from the bill where it should the FISA bill passed this year is giving more authority for the NSA to spy. Now why should i buy into this devastating threat to our rights when no one can actually show the language of the bill that does this. So until that's done, I'm going to remain unconvinced. You can label me some sort of Nazi if you like if that helps you "win" your argument, but if you actually want to persuade me, you have to do more than base your argument on the interpretation the ACLU does. How about a non-partisan source - or just anything like quoting the parts of the bill that give away our rights.
Further more, the FISA bill now actually grants more civil liberities protections to Americans living abroad - something that hasn't been done. It has all the same protections as the prior bill, and ensure there is a court overseeing NSA activities. They still have to go through the same process. As for the immunity - well if you think the telecom companies violated the 4th amendment - then what are you worried about - a legislative bill can not supersede the constitution and it will get thrown out. But to date, the supreme court has sided with the administration on the wire-tapping issue.
take a con law class. the court not taking a case does not mean it has sided with it. plus what cases have made it thru to filing cert anyway?
decent summary Political Animal) THE FISA COMPROMISE....The aspect of the FISA compromise that's gotten the most attention is its grant of retroactive immunity to the telephone companies that cooperated with the NSA's post-9/11 domestic spying program. Like everyone else in the liberal blogosphere, I think retroactive immunity is a bad idea that sets a bad precedent, but as I've mentioned before, this isn't a hill I'm willing to die defending. Sure, the telcos may have made the wrong call, but they were caught in a genuinely tough bind in the days after 9/11. The real bad guys here are George Bush and his enablers, who refused to go to Congress after the immediate post-9/11 emergency was over and get legislative approval for the NSA surveillance program. For my money, then, telecom immunity is a little bit of a sideshow. The rest of the bill matters a lot more. So what's in it? For starters, the most positive aspect of the bill is that it make clear that FISA and the criminal wiretap laws are the exclusive means by which electronic surveillance may be conducted. It's true that the old FISA bill says the same thing, and in any case it wouldn't surprise me if Bush issued a signing statement saying he disagrees with this section, but still, at least it's something. However, there are also several negative aspects of the bill aside from telecom immunity, and two of them stand out to me. First, the old FISA allowed NSA to conduct a wiretap for up to 72 hours while waiting for FISA approval. The new bill extends this to a week, allows the surveillance to continue during appeals, and permits the government to use any of the information it collects even if the FISA court eventually rules that the tap is unlawful. This pretty obviously opens the door to some fairly serious abuse in the future. Second, and more fundamentally, the bill gives wholesale approval to bulk monitoring of electronic communications (primarily email and phone calls). This is the issue that catapulted FISA into prominence in the first place, and it's getting surprisingly little attention this time around. As near as I can tell, this is because bulk monitoring is now widely accepted on both sides of the aisle. For example, in his interview with Jake Tapper last week, Barack Obama made a point of correcting him on this score: TAPPER: There has not been a terrorist attack within the U.S. since 9/11. And [the Bush administration says] the reason that is, is because of the domestic programs, many of which you opposed, the NSA surveillance program, Guantanamo Bay, and other programs. How do you know that they're wrong? It's not possible that they're right? OBAMA: Well, keep in mind I haven't opposed, for example, the national security surveillance program, the NSA program. What I've said that we can do it within the constraints of our civil liberties and our Constitution. At this point we have to engage in a bit of guesswork since the details of the NSA program are classified, but the basic problem is the same as it's always been: NSA's program isn't targeted at particular people or even particular organizations. Nor is it targeted solely at foreign-to-foreign communications since modern communications technology makes it very difficult to be sure where a particular message originates or terminates. Rather, it's based on complex computer algorithms, something that's genuinely uncharted territory. To repeat something I said a couple of years ago, the nice thing about probable cause and reasonable suspicion and other similar phrases is that they have a long history behind them. There are hundreds of years of statutory definition and case law that define what they mean, and human judges interpret them in ways that most of us understand, even if we disagree about whch standard ought to be used for issuing different kinds of wiretap warrants. But the NSA's domestic spying program doesn't rely on the ordinary human understanding of these phrases. Instead, it appears to rely primarily on software algorithms that determine whether or not a person is acting in a way that merits eavesdropping. The details are still murky, but what the NSA appears to be doing is very large scale data mining on virtually every phone call and email between the United States and overseas, looking for patterns that fit a profile of some kind. Maybe twice or three-times removed links to suspected terrorist phone numbers. Or anyone who makes more than 5% of their calls to Afghanistan. Or people who make a suspiciously large volume of calls on certain dates or from certain mosques. Stuff like that. Then, if you happen to fit one of these profiles, your phone is tapped and an NSA analyst decides if you're really a terrorist suspect. This apparently happens tens of thousands of times a year and most are washed out. Perhaps a thousand or two thousand a year are still suspicious enough to pass on the FBI, and most of these wash out too. At the end of the year, five or ten are still of enough interest to justify getting a domestic wiretap warrant. Is this useful? Maybe. But we're not listening in on al-Qaeda's phone calls to America. We're tapping the phones of anyone who fits a hazy and seldom accurate profile that NSA finds vaguely suspicious, a profile that inevitably includes plenty of calls in which one end is a U.S. citizen. But the new FISA bill doesn't require NSA to get a warrant for any of these individuals or groups, it only requires a FISA judge to approve the broad contours of the profiling software. This raises lots of obvious concerns: The algorithms that determine NSA's profiles are almost certainly extremely complex and technical — far beyond the capability of any lawyer to understand. So who gets to decide which algorithms are legitimate and which ones go too far? NSA's computer programmers? What happens to the information that's collected on the tens of thousands of people who turn out to be innocent bystanders? Is it kept around forever? Is this program limited solely to international terrorism? Are you sure? If it works, why not use it to fight drug smuggling, sex slave trafficking, and software piracy? Since this program was meant to be completely secret, what mechanism prevents eventual abuse? Because programs like this, even if they're started with the best intentions, always get abused eventually. The oversight on this stuff is inherently weak. After all, no court can seriously evaluate algorithms like this and neither can Congress. They don't have the technical chops. Do the algorithms use ethnic background as one of their parameters? Membership in suspect organizations? Associations with foreigners? Residence in specific neighborhoods? Nobody knows, and no layman can know, because these things most likely emerge from other parameters rather than being used as direct inputs to the algorithm. For all practical purposes, then, the decision about which U.S. citizens to spy on is being vested in a small group of technicians operating in secret and creating criteria that virtually no one else understands. The new bill requires annual review by Inspectors General of the government's compliance with targeting and minimization procedures, which is better than nothing, but stronger amendments aimed at limiting the targeting of U.S. citizens were specifically rejected. See David Kris here for more. In the end, everyone seems to have decided that bulk monitoring of electronic communications is OK, and that the new bill provides adequate oversight and minimization procedures. I'm not so sure myself, since I don't trust proedures like this to stay robust. In any case, I'd say this is the core issue, not telecom immunity, and it deserves more attention. Unfortunately, it doesn't look like it's going to get it.
That court was there before as part of the 1978 FISA. They were required to use it before. They violated that law before and they will continue to do so. Nothing there has changed. I'm reasonably confidant that it will. I am more concerned about a congress which was elected to check the unfettered abuses of power by the White House rolling over every time Bush says "National Security! BOO!"
This is speculation on my part but I have been thinking about why Obama voted for this bill. While I think for the most part this was a political move to shore up attacks that he is weak on national security I think there might be something more to this. One of the biggest legacies of the GW Bush Admin. will be how much the balance of power has shifted from to the Executive branch. Obama realizing that he very likely will be the next President might realize that balance of power will work in his favor. As a community activist and a legislator the shift of power to the executive is clearly a problem but not when you become the executive. Obama might be feeling that as President it is in his interest to keep the power equation in his favor since the main difference will be who is president.
I think this answers your question: [rquoter]First, the old FISA allowed NSA to conduct a wiretap for up to 72 hours while waiting for FISA approval. The new bill extends this to a week, allows the surveillance to continue during appeals, and permits the government to use any of the information it collects even if the FISA court eventually rules that the tap is unlawful. This pretty obviously opens the door to some fairly serious abuse in the future. [/rquoter] My understanding of the previous FISA law and laws regardign warrants, or even reasonable cause, is that if a court found that surveillance or searches was being conducted without a warrant or that the reasonable cause wasn't that reasonable any information or material gathered had to be thrown out. What this new law is saying is that any information doesn't have to be thrown out so the NSA could just start surveilling for any reason and even if FISA told them to stop any information they gathered could be used. It seems to me that the NSA could just start surveillance of the same target again even after FISA told them to stop and just keep repeating the cycle since they could still use any information gathered even if FISA determined that it was an illegal surveillance.
Ok pg and judoka bring up good points. that clause is pretty scary about the FISA court being ignored by the NSA. Other than that, i'm ok with this bill. because while there isn't a warrant, it does seem to have probable cause. If they are using software to listen into to everyone's conversations to pick out suspicious words - is that any different from having your bags x-ray'd while you go through an airport? Or having your bag searched in other places. We often have to give up privacies in instances to guarantee security - but only in certain situations. I think it's important that people are told there is a software program listening into to all our foreign communications and if it picks us out there's a process to listen to out foreign communications even more carefully. To me, seems like they are generally sifting through to pick up on "terrorist" chatter. And I doubt the NSA is going to be interested in anything else such as drug trafficking or money laundering. Seems to me they are entirely focused on terrorist actitivity - and the FISA court should make sure of that. But the clause that you quote is troubling and I wish they would change that.
where is probable cause required? secondly there is an enormous difference between xray at the airport and phone calls. for one xray is very limited in its scope, its a completely transparent process, it is something we all have somewhat of a choice in avoiding. its also universally acceptable. listening to all my phone conversations to pick out 'suspicious words' which may mean i am a gov't student discussing my mid east class or a well informed person discussing a thread on clutchfans. my entire conversation could be recorded because i said osama or terrorism or bombing or how hakeem is the bomb. and in that recording tons of my privacy would have been invaded. this information may be stored somewhere for god knows how long. there is no transparency.
I think he voted for this bill because he knew it was going to pass, and he did it in anticipation of the Republican onslaught attack that was about to come down upon him. The RNC will clearly try to label Obama a liberal, the one way to make it harder for them to do that is for Obama to attract a lot of attention with "moves to the center" and getting blasted by liberals. Thus now if the RNC says Obama is a liberal - no one will believe it. Instead, they will attack him as a flip-flopper. But again, McCain is guilty of that as well, and it seems that the republicans wore that line of attack out on Kerry already so the electorate might again be wary of it.
it would have to be communications with one end originating or ending up in a foreign country. so unless you are talking to someone in the middle east you don't have a problem. also, it's a software listening in, not a person. you still have the same choice in avoiding it too. the information isn't stored, it's acted upon. the nsa throws most of it out, and only takes what truly seems suspicious and passes that on to the fbi.
or if im in seattle and calling someone in vancouver. or if im calling my buddy in acapulco on vacation. and no there isn't the same choice. not flying on an airplane is different from not talking to family or friends or for business outside of the US. how do you know its not stored? there isn't the same level of transparency as there is on a dude looking at my bags to see if there is anything prohibited for safety reasons on an airplane.
The new FISA law though allows NSA to store the info and use it again even if the surveillance is deemed illegal by FISA.
Heaven forbid that we should expect our presidential candidates to defend the Constitutional first and consider expendiency second. As for your opinion on the subject, god save us if most of the rest of the country feels as you do... that when the Constitution gets trampled on, the first thing being considered consists of finding excuses for why that doesn't matter. With all due respect, that simply disgusts me. Even worse, Barack Obama and John McCain feel the same way. I will say this... Barack Obama, and it should go without saying, John McCain, will not receive one dime from me as a contribution. I'll be sending my contributions to the Democratic National Committee. At least my hands will be clean. If the DNC gives the money to Obama, it'll go through them and not through me. With any luck, the money will go to increase the Democratic majority in Congress. There will be no Obama signs on my corner lot or bumper stickers on my cars. Anything I do will be directed at helping local Democrats. Yes, I'm pissed. Impeach Bush/Cheney.
I haven't really read this thread, but I wanted to post in it just to say that I was very disappointed with Obama on this issue. I don't pretend to understand why he did it, but it was a major drag. It doesn't rise to the level (for me) of significantly dampening my enthusiasm for his candidacy or, fingers crossed, his presidency. But it's bad. Every politician will disappoint in some way. I'm sorry Deckard feels he can't contribute money to O's campaign now, but I understand. For everyone there are certain positions or moves that will be totally untenable. I was always distrustful of Bill Clinton, but when he did Don't Ask Don't Tell, when he pushed through NAFTA and, worst of all, when he passed that horrible Welfare Reform legislation, kicking thousands of poor and homeless children to the curb for their parents' actions, I swore I would never lift a finger of any sort on his behalf. So I understand. Personally though, I can't let this bring me down too much. I agree with Obama with regard to his principles regarding domestic spying even if I wholly disagreed with this vote. And I still believe he is far and away the best candidate for the presidency in my lifetime.
I thought I had posted this earlier, but looking through the thread, it doesn't look like I did. For those of you interested, here's Obama's explanation - made in a blog post to people on his community site that were organizing agains the FISA vote. Take it for what's it's worth. I don't know enough about the FISA bill to have a position on it - I actually don't have a problem with the retroactive immunity aspect, but I have potential concerns on how they plan to implement things in the future. http://my.barackobama.com/page/community/post/rospars/gGxsZF I want to take this opportunity to speak directly to those of you who oppose my decision to support the FISA compromise. This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That's why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate. But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any President or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The (PDF)recent investigation uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report. The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise. I do so with the firm intention -- once I’m sworn in as President -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future. Now, I understand why some of you feel differently about the current bill, and I'm happy to take my lumps on this side and elsewhere. For the truth is that your organizing, your activism and your passion is an important reason why this bill is better than previous versions. No tool has been more important in focusing peoples' attention on the abuses of executive power in this Administration than the active and sustained engagement of American citizens. That holds true -- not just on wiretapping, but on a range of issues where Washington has let the American people down. I learned long ago, when working as an organizer on the South Side of Chicago, that when citizens join their voices together, they can hold their leaders accountable. I'm not exempt from that. I'm certainly not perfect, and expect to be held accountable too. I cannot promise to agree with you on every issue. But I do promise to listen to your concerns, take them seriously, and seek to earn your ongoing support to change the country. That is why we have built the largest grassroots campaign in the history of presidential politics, and that is the kind of White House that I intend to run as President of the United States -- a White House that takes the Constitution seriously, conducts the peoples' business out in the open, welcomes and listens to dissenting views, and asks you to play your part in shaping our country’s destiny. Democracy cannot exist without strong differences. And going forward, some of you may decide that my FISA position is a deal breaker. That's ok. But I think it is worth pointing out that our agreement on the vast majority of issues that matter outweighs the differences we may have. After all, the choice in this election could not be clearer. Whether it is the economy, foreign policy, or the Supreme Court, my opponent has embraced the failed course of the last eight years, while I want to take this country in a new direction. Make no mistake: if John McCain is elected, the fundamental direction of this country that we love will not change. But if we come together, we have an historic opportunity to chart a new course, a better course. So I appreciate the feedback through my.barackobama.com, and I look forward to continuing the conversation in the months and years to come. Together, we have a lot of work to do.
