(MintPress) – President Obama has signed into law a five-year extension of the Foreign Intelligence Surveillance Act, which passed the Senate last Friday by a vote of 73-23. The Act — which authorizes the use of intercepting overseas phone calls and emails of suspected threats to national security without a court-issued warrant — would have expired at the end of 2012 without an extension.
This Act — which is intended solely for the surveillance of foreign threats — cannot be used against Americans without special consent from the Foreign Intelligence Surveillance Court — which is a committee of 11 district court judges, appointed by the Chief Justice of the United States with a minimum of three living within 20 miles of the District of Columbia. The FISC has jurisdiction to “hear applications for and grant orders approving electronic surveillance” and “physical search[es]” for the “purpose of obtaining foreign intelligence information” on foreign nationals within the United States. The process is secretive, not reportable to the public — the FISC chooses when and if it should release reports to the public and to those affected, and is non-adversarial — as the target to be surveilled is not allowed to defend himself. In addition, the government need not present rationale for needing a warrant; the government only needs to prove that the target is a foreign agent or in the employment of a foreign power.
In 2008, the American Civil Liberties Union (ACLU) challenged the 2008 amendments to FISA. Amnesty v. Clapper, a lawsuit filed on behalf of a coalition of human rights, labor, legal and media organizations, challenged the law on the basis that their daily business entails regular communication with individuals outside the United States. In 2009, a judge in New York dismissed the suit on the grounds that it could not be proven that the plaintiffs’ communications were being monitored explicitly. The case was appealed, reversed and elevated to the Supreme Court, which heard oral arguments in October 2012.
The ACLU and others strongly feel that FISA invites the federal government to act extralegally toward surveilling “perceived” national security threats. Without explicit guarantees to ensure governmental compliance to the protections within the law, the ACLU argues that such a law is almost assured to be — if not already — abused.
Prior to the enactment of FISA under President Carter in 1978, the Supreme Court held that physical searches and electronic surveillance were equally subjected to the Fourth Amendment and required warranting. However, the ambiguity concerning matters of national security and the eavesdropping on foreign spying against the United States necessitated the creation of an act that clarified the government’s obligations. At the time, there were justified fears that the Soviet Union was deploying spy networks within the U.S.
Four amendments to FISA that would have expanded the Act’s responsibility to personal privacy were defeated in the Senate. S.Amdt. 3435 to HR 5949 — proposed by Jeff Merkley (D-Ore.) and co-sponsored by Mike Lee (R-Utah), Christopher Coons (D-Del.), Ron Wyden (D-Ore.), Al Franken (D-Minn.), Jeanne Shaheen (D-N.H.), Jon Tester (D-Mont.) and Richard Durbin (D-Ill.) — “require[s] the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States.” The amendment failed 37-54.
S.Amdt. 3436 to HR 5949 — proposed by Rand Paul (R-Ky.) and co-sponsored by Lee — “ensure[s] adequate protection of the rights under the Fourth Amendment to the Constitution of the United States” by denying the government the right to petition for information from a third-party record system, such as petitioning Google’s Gmail or Facebook for information about their users.
In defense of his amendment, Rand Paul said,
“To discount or to dilute the Fourth Amendment would be to deny really what constitutes our very republic.
“But somehow along the way, we became lazy and haphazard in our vigilance. We allowed Congress and the courts to diminish our Fourth Amendment protections, particularly when we gave our papers to a third party. Once you gave information to an Internet provider or to a bank. Once we allowed our papers to be held by a third party, such as telephone companies or Internet providers, the courts determined that we no longer had a legally recognized expectation of privacy.
“Now, there have been some dissents over time. Justice Marshall dissented in the California Bankers Association v. Shultz case, and he wrote these words – ‘the fact that one has disclosed private papers to a bank for a limited purpose within the context of a confidential customer-bank relationship does not mean that you have waived all right to the privacy of your papers.’
“But privacy and the Fourth Amendment have steadily lost ground over the past century. From the California Bankers Association case to Smith v. Maryland to U.S. v. Miller. The majority has ruled that your records, once they are held by a third party, don’t deserve the same Fourth Amendment protections. Ironically, though, digital records seem to get less protection than paper records. As the National Association of Defense Attorneys has pointed out, since the 1870′s, the government must get a warrant to look and read your mail, as is the case of Katz v. The United States, the government has been required to have a warrant to tap your phone. However, under current law, your e-mail, your text messages and other electronic communications do not receive the same level of protection as your phone calls do. Why is a phone call deserving of more protection than your e-mail or your text? Justice Sotomayor in U.S. v. Jones, the recent supreme court case that says the government can’t put a GPS tracking device on your car without a warrant says this – ‘I for one doubt that people would accept without complaint the warrantless disclosure of the government to the government of a list of every website they have visited in the last week, month or year. I would not assume that all information voluntarily disclosed to some member of the public for unlimited purpose is for that reason alone disentitled to the Fourth Amendment protections.’”
The amendment was defeated 12-79.
S.Amdt. 3437 to HR 5949 — proposed by Patrick Leahy (D-Vt.) and co-sponsored by Durbin, Franken, Shaheen, Daniel Akaka (D-Hawaii), and Coons — required the disclosure of FISC unclassified decisions and judgments within 45 days of the implementation of the ruling. The amendment failed 38-52.
S.Amdt. 3439 to HR. 5949 — the most important amendment toward the privacy of the individual — ”require[s] a report on the impact of the FISA Amendments Act of 2008 on the privacy of the people of the United States.” Proposed by Wyden and co-sponsored by Mark Udall (D-Colo.), Lee, Durbin, Merkley, Udall, Mark Begich (D-Ark.), Franken, Jim Webb (D-Va.), Shaheen, Tester, Jeff Bingaman (D-N.M.), Frank Lautenberg (D-N.J.), Coons and Max Baucus (D-Mont.). The amendment was defeated 43-52.
Trevor Timm, an activist for the Electronic Frontier Foundation, in his article for EFF, suggested that many senators wanted to extend the bill without discussion. Saxby Chambliss (R-Ga.) pushed for the House version of the reauthorization bill be passed as is in the Senate. Majority Leader Harry Reid (D-Nev.) pushed the bill through with a limited suite of amendments due to time constraints. “FISA, this is an important piece of legislation as imperfect as it is, it is necessary to protect us from the evil in this world,” Reid said on the floor last Tuesday. “We need to finish this by the end of the week.”
Dianne Feinstein (D-Calif.), the Senate Intelligence Committee’s chairwoman, echoed Chambliss’s call for pushing the White House-supported House bill. As she stated, without renewal, “the program comes down. The program is interrupted.”
The trade off of personal liberties and national security
In an email interview with Threatpost, Timm suggested that the Senate leadership intentionally opted out of voting on the bill in September to create an artificial urgency to push through the bill when it is finally reintroduced to the floor at the end of the year.
“Sen. Feinstein disingenuously lamented how she’d like to support some of the amendments but couldn’t because of the time crunch (which was wholly created by her and Senate leadership). This tactic stifled debate on the bill and prevented these common sense transparency and oversight from having a full hearing.
“FISA Amendment Act’s proponents claim it’s vital to stop terrorists, yet there’s no real evidence that is the case. Sen. Feinstein read a list of all the terrorism suspects arrested in the last four years, yet she didn’t say they were arrested because of FISA. And if it was, there’s no reason to believe getting a warrant like every other criminal investigation in American history, would’ve impeded law enforcement at all.”
In response to Threatpost’s request for an interview with Rep. Lamar Smith (R-Texas), the House’s bill sponsor, his office sent the following in a press release:
“Our national security agencies operate around the clock to protect America from foreign terrorist groups and spies. But in order to keep America safe, we must be able to conduct surveillance of foreign terrorists and intelligence organizations. H.R. 5949 enables the intelligence community to gather information on foreign terrorists overseas, while still protecting the civil liberties of U.S. citizens at home and abroad. The President should sign this bipartisan bill to ensure that our intelligence capabilities are not dismantled and our nation not put in danger.”
Without the clear disclosure the amendments would have required, it is impossible to say if FISA has been used against 100, 100,000 or 1 million. Sen. Merkley puts it this way, when asked last Thursday on HuffPost Live, “Without knowledge of how these secret courts have ruled on interpretations of these phrases, we really have no idea how much spying on Americans is taking place.”
It will not be until 2017 that the Congress will get another chance to address the inadequacies of FISA.
In conversation with MintPress, Jimmy Ardoin, a criminal defense lawyer who served in defense on the Enron and Stanford scandals, said:
“Anytime the government enacts a law that is contrary to the tenants of the Fourth Amendment, Americans should pay careful attention and be mindful of the potential for abuse of such a law. While almost all Americans can agree that our government has a compelling interest in thwarting foreign threats to our way of life, we should all be diligent and ready to fight any abuses of those efforts that likewise infringe on the freedoms and protections that the founders of this country established.”
Sen. Wyden has, on three separate occasions, requested the public release of unclassified information in regard to the scope of the FISA surveillance program against Americans. On July 14, 2011, Sen. Wyden wrote a letter to the Director of National Intelligence James Clapper, Jr., to seek answers to the following questions:
In a December 2007 Statement of Administration Policy on the FISA Amendments Act, the Office of Management and Budget said that it would “likely be impossible” to count the number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act. Is this still the case? If so, is it possible to estimate this number with any accuracy?
Official documents released in 2010 noted that there have been multiple incidents in which intelligence agency personnel have failed to comply with the FISA Amendments Act, and that “Certain types of compliance incidents continue[d] to occur.” Please elaborate on these compliance incidents to the extent possible, and explain why you believe that they have continued to recur.
Have any apparently law-abiding Americans had their communications collected by the government pursuant to the FISA Amendments Act?
Are any significant interpretations of the FISA Amendments Act currently classified?
Clapper responded that the Executive Branch has a “robust oversight regime” and that the information requested is available to the senators, but is classified against public release. The director also responded that “it is not reasonably possible to identify the number” of Americans who have been spied on inadvertently or intentionally due to suspicion of foreign intelligence participation.
Wyden then asked the inspector general for the National Security Agency and the Intelligence Community to “determine the feasibility of estimating” the number. Inspector generals in the federal government architecture are responsible for the legal and procedural compliance of the agency they oversee. The inspector general of the Intelligence Community’s office responded:
“The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that no IG review of the sort suggested would itself violate the privacy of U.S. persons.”
Finally, Sen. Wyden — along with Sens. Udall, Paul, Merkley, Begich, Lee, Bernie Sanders (I-Vt.), Tester, Coons, Durbin and Bingaman — asked the director of National Intelligence to disclose the magnitude of the number of Americans surveilled against, if the actual number is classified.
“We are concerned that Congress and the public do not currently have a full understanding of the impact that this law has had on the privacy of law-abiding Americans. In particular, we are alarmed that the intelligence community has stated that ‘it is not reasonably possible to identify the number of people located inside the United States whose communications may have been reviewed’ under the FISA Amendments Act.”
The Executive Branch has argued that current law makes no prohibition against the searching of legally obtained surveillance for communications of American citizens, and as such, cannot estimate how many Americans were inadvertently surveilled in section 702 operations.
“If, as we have noted, the intelligence community has not even estimated how many Americans have had their communications collected under section 702, then it is possible that this number could be quite large. Since all of the communications collected under section 702 are collected without individual warrants, we believe that there should be clear rules prohibiting the government from circumventing traditional warrant requirements and searching through these communications in an effort to find the phone calls or emails of particular Americans.”
Sen. Udall went even further, as stated on a press release on the senator’s web page:
“I opposed a long-term extension of the federal government’s warrantless surveillance program earlier this year because Congress and the American people need a better understanding of how this law has affected the privacy of Americans. My colleagues and I were hoping to get more clarity in the response we received from the DNI to our July letter. Specifically, our letter asked if any wholly domestic U.S. communications had been intercepted under the FISA Amendments Act and whether the government has attempted to search for the communications of specific Americans without a warrant or emergency authorization. In response to our letter, the DNI has now told us that the answers to those questions are classified. The DNI also takes exception to our use of the word ‘loophole’ to describe how the law could allow the government to conduct warrantless searches for Americans’ communications – and yet the DNI does not deny that the law provides this authority.
“The DNI’s response is inadequate and does not sufficiently address my concerns regarding the possibility of unauthorized surveillance of Americans. Coloradans can rest assured that I will continue to vigorously demand more accountability and fight to protect their constitutional right to privacy.”