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The FISA Amendment: Totally Defensible If You Lie About It

August 17th, 2007 · No Comments

I started noticing this last week, but the level of bald-faced mendacity indulged in by defenders of the recent FISA amendment is sort of gobsmacking, which is saying quite a bit given how little I expect of GOP dead-enders at this point. Consider this, from the Weekly Standard‘s blog:

One of the last things Congress did before adjourning for the August recess was to pass the Protect America Act, which clarifies the authority of the Executive Branch to intercept without a court order the communications of suspected terrorists who are foreign nationals, located abroad. It represents nothing more than the preservation of the original effect of FISA, updated to reflect changing technology. The legislation lasts just 6 months, which means Congress must quickly consider a longer extension.

Emphasis mine. This is not only untrue, but plainly untrue to anyone who has been paying any attention to this issue, since the central contested difference between the Democratic and Republican amendments was the way the latter went beyond “preservation” of the traditional ability to eavesdrop on foreign-to-foreign communication and licensed warrantless surveillance of communication between U.S. persons and targets abroad. We know that this was not part of “the original effect of FISA” because FISA was passed precisely to ensure judicial oversight of such surveillance in the wake of the Church Committee‘s exposure of illegal intercept programs like Project SHAMROCK and HT Lingual. So according to the Standard, “the preservation of the original effect of FISA” entails stripping away warrant requirements from the exact type of surveillance FISA was originally intended to limit. Also, since the amendment permits authorization of surveillance for up to a year, the legislation effectively “lasts” not six months, but 18.

In an attempt to steer the discussion still further from the actual issue, the post continues by citing Rasmussen poll data to suggest that Dems will be committing political suicide if they do anything to roll back this massive expansion of surveillance powers:

Seventy-nine percent (79%) of Republicans believe that allowing the government to intercept such calls makes the nation safer. Forty-eight percent (48%) of Democrats agree along with 53% of those not affiliated voters.

“Such calls” here means “calls from terrorist suspects.” But this is now triply irrelevant. First, the new surveillance powers apply to any intercepts sought for any foreign intelligence purposes—there is no requirement that either party to the communication be a terror suspect, or indeed that the information sought have anything to do with terrorism. Second, absolutely nobody is disputing that intelligence agents should be able to intercept, without any warrant, communications between two people located abroad. Third, nobody is disputing that intelligence agents should also be able to intercept communications where one or more of the parties is in the U.S.—the only question is whether in this case, a judge should have to sign off on the surveillance. Nothing in the Standard‘s summary even gestures in the direction of making the distinctions needed to define the actual topic of controversy.

A special chutzpah award, however, goes to David Rivkin and Lee Casey for this LA Times op-ed, which argues that the fatal constitutional defect in the new FISA amendment is the excessive oversight it provides. Yes, that’s right: Even requiring judges to retroactively review the general guidelines governing warrantless surveillance of Americans’ communications with foreign intelligence targets apparently constitutes some sort of lèse majesté. Reading this argument feels vaguely like being force-fed a shit sandwich, then scolded for not having a breath mint.

Still, I take some consolation from the thought that the folks seeking to defend this grotesque law feel compelled to attempt to obfuscate the actual issues so thoroughly. It may mean they fear Americans’ willingness to cower in silence whenever the executive branch utters the word “terrorism” has reached its limit.

Tags: Privacy and Surveillance



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