Halfway to Sunset

I didn't expect to be blogging about the USA Patriot Act again this year. I assumed the extensions to the Bush-era anti-terrorist surveillance bill would pass without fuss, and the sun would fail to set yet again. But something happened.

The House didn't pass the USA Patriot Act extension. Apparently they considered it so uncontroversial that they moved it to the floor under a provision that requires a two-thirds majority to pass. One-hundred-twenty-two Democrats voted against it, and they were joined by 26 Republicans, including eight freshman "tea party" candidates. Of course, the headlines will read that it was some kind of "tea party rebellion" that thwarted the extension, ignoring the 122 nays from the Democrats, and ignoring that most of the tea party caucus voted to pass the extension.

Seeing this new Congress in action leads me to a few questions: are the TP candidates posing as libertarians or authoritarians? What happened to the "small government" rhetoric? They certainly have a strange understanding of freedom as Rachel Maddow pointed out last night. Just look at their policies:

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And yet Congress went through all that trouble to read the Constitution on the House floor just to cast votes against the Fourth Amendment a month later.

The bright side is that the issue of civil liberties can be common ground for the right and the left, but Glenn Greenwald has these sobering thoughts:

Last night's unexpected Patriot Act vote illustrates the tantalizing promise of such an alliance. Things would be vastly improved on the civil liberties front if the American Right was even minimally faithful to the political principles they claim to support. But the nature of that movement means that last night's vote is far more of an isolated aberration than anything likely to change the bipartisan dynamic in a positive way. Indeed, the very weak status of civil liberties in the U.S. is compellingly illustrated by the fact that an alliance with this deeply unprincipled and authoritarian movement is one of the few viable means for stemming the tide of the erosion.

Greenwald also believes that the Patriot Act extensions will indeed pass when they are voted on again in a few weeks under standard procedures that require a majority for approval.

But with more attention on the issue now and the votes of some unallied Freshman, maybe they will surprise us again? They do seem kind of fickle.

What You Should Know About FISA

FISA stands for Foreign Intelligence Surveillance Act. It became a U.S. federal law in 1978.

The law prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens suspected of espionage) on territory under United States control.

What you should know about FISA is that it created the Foreign Intelligence Surveillance Court (FISC) which meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied is reported. In 1980, the court approved 322 warrants. In 2007, the court approved 2370 warrants. Check the FISA Stats web site to see that 99% of warrant requests are approved.

What you should know about FISA is that it has always had emergency provisions. The Attorney General has the power to authorize secret electronic surveillance and searches before any warrant is granted, or an application is made, for up to 72 hours. It was not a FISA weakness that prevented the capture of Zacarias Moussaoui prior to 9/11.

What you should know about FISA is that it was amended by the USA PATRIOT Act of 2001. One of these changes was to remove a legal "wall" between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped.

On December 16, 2005, The New York Time's reported that President Bush secretly authorized the National Security Agency in cooperation with major telecommunications companies 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.

On August 17, 2006 U.S. District Court Judge Anna Diggs Taylor ruled in ACLU v. NSA that the warrantless wiretapping program is unconstitutional and ordered that it be stopped immediately, on the grounds that such activities are violations of the rights to free speech and privacy.

What you should know about FISA is that it was again amended this time by the Protect America Act of 2007. This act was a response to the NSA ruling and modified FISA in several ways.

• It allows the Attorney General to issue program warrants for international calls without court review.
  
• It has no protections for American phone calls and emails that are caught up in an investigation.
• It gives the administration greater power to force telecom companies to cooperate with surveillance operations. The telecom companies can be compelled to cooperate by orders from the Attorney General and the Director of National Intelligence.

The Protect America Act expired on February 17, 2008. However, the underlying FISA did not expire.

What you should know about FISA is that yet another amendment was approved by the House of Representatives on Friday. This law is called the FISA Amendments Act of 2008.

• It ensures the dismissal of all cases pending against the telecommunication companies that facilitated the warrantless wiretapping programs over the last 7 years. The test in the bill is not whether the government certifications were actually legal – only whether they were issued. Because it is public knowledge that they were, all the cases seeking to find out what these companies and the government did with our communications will be killed.
• It permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.
• It permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.
• It further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court.
• It does NOT guarantee members of Congress not on Judiciary or Intelligence Committees access to reports from the Attorney General, Director of National Intelligence, and Inspector General.

What you should know about this amendment is that it has no public value for citizens or civil liberties.

What your should know about the Fourth Amendment to The United States Constitution is that it states:

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.

And that's the clearest government document I've read all day.