If a communication involves overseas transmission, Bush's military mega-spying apparatus can now "legally" intercept all American telephone calls and e-mails without a warrant. This effectively means that without a court (warrant) overseeing the process, Bush's people are free to pry into any and all American lives as long as they "say" it is because they "think" that it may involve some sort of international communication.
"This bill would grant the attorney general the ability to wiretap anybody, any place, any time without court review, without any checks and balances," said Rep. Zoe Lofgren, D-Calif., during the debate preceding the vote. "I think this unwarranted, unprecedented measure would simply eviscerate the 4th Amendment, which prohibits unreasonable searches and seizures."
Were you paying attention to the news last Saturday? President Bush got a lot more powerful and our constitution weaker.
Specifically, Bush's new FISA law permits warrantless domestic surveillance in the U.S. as long as the target of the call or e-mail is "reasonably believed" to be overseas. In fact, as Glenn Greenwald (Salon.com) explained, the law now allows the government to "listen to our conversations, read our e-mails, with no connection to terrorism, with no proof that anyone has ever done anything wrong" - without judicial oversight. The implication of this loose clause, Greenwald notes, is far-reaching:
"The government can monitor every single phone call that London is making to you in Washington, D.C., to any of the viewers at home. ... They can listen to every single international call that you make or receive, every e-mail that you write, and e-mail that you receive, in complete and total secrecy." - Glenn Greenwald, constitutional lawyer, as heard on C-SPAN's Washington Journal this week
But who do they have to justify this to? Nobody.
The founders of our nation set up three distinct branches of government, believing that three independent branches would be necessary in order to safeguard the constitutional rights of citizens. Now, one branch, the executive branch headed up by George Bush, has succeeded in upsetting and thwarting that balance.
If there is NO warrant, then, there is NO judicial oversight and there's NO accountability.
The Bush administration plans to leave oversight of its expanded foreign eavesdropping program to the same government officials who supervise the surveillance activities and to the intelligence personnel who carry them out. (Washington Post)
Over strong objections from civil liberties groups and many Democrats, legislators voted over the past weekend to temporarily rewrite the 1978 wiretapping law, Foreign Intelligence Surveillance Act (FISA). FISA is a collection of espionage laws, passed in 1978, to crack down on abuses by American spy agencies accused of illegally spying on Americans.
FISA was originally written in the 1970s to prevent the abuse of power that we saw from Richard Nixon. Americans were not willing to allow another Tricky Dick to spy on them, so the FISA law was passed to require the spies employed by the President to have court oversight for their spying activities. In other word, Americans wanted one branch of government to hold the other branch of government accountable. Since FISA passed in the 70s, U.S. intelligence agencies have been required to obtain prior approval from a special FISA court before intercepting the communications of people in the U.S.
This new law, passed just last weekend, unravels that important safeguard and accountability.
It not only restores unfettered internal spying freedoms to the President and his huge spying apparatus, but it allows him to go further and wider in watching and spying on Americans than Tricky Dick Nixon ever could have imagined.
With the information age and so much information being passed around by e-mail, Bush can now copy and store ALL e-mails and is free to rummage through them whenever he wants - without a court order.
The measure would give new authority to the attorney general and the director of national intelligence to make that determination. Those are Bush appointees that report to Bush. That's not accountability.
"The law, which permits intercepting Americans' calls and e-mails without a warrant if the communications involve overseas transmission, gives Director of National Intelligence Mike McConnell and Attorney General Alberto R. Gonzales responsibility for creating the broad procedures determining whose telephone calls and e-mails are collected. It also gives McConnell and Gonzales the role of assessing compliance with those procedures...
"Once the procedures are established, the attorney general and director of national intelligence will formally certify that the collection of data is authorized -- a determination based on affidavits from intelligence officials. But the certification will be placed under seal." (Washington Post)
Why did Bush want this increase in his powers now? Why now?
Since March, the Bush administration has been building a case for its FISA legislation. But it wasn't clear until last week why it was pushing so urgently.
The LA Times pieced together some of the recent events for us. See, Bush had been snubbing his nose at the FISA laws for over 5 years. After September 11th, Bush decided unilaterally that he no longer needed to abide by FISA. That is, he decided he no longer needed warrants to spy on Americans and no longer had to subject his spying to court oversight. Bush secretly authorized the National Security Agency to bypass courts and monitor international communications, even those of U.S. citizens.
Many Americans saw this as a huge breach of ethics and unlawful. However, with the same party in charge of the White House and Congress, there seemed to be no "will" on the part of Congress to investigate the abuse. Bush had free reign until this year.
When Democrats took over Congress earlier this year, Bush all of a sudden capitulated (after 5 full years of abusing the law) and announced that he would suddenly start abiding by FISA (the law of the land, after all) and would start submitting his spying on Americans to the FISA court for oversight.
Sometime later, however, a FISA judge ruled that certain aspects of the Bush administration surveillance program violated the law. Intelligence officials indicated that the ruling required the government to obtain warrants even for "foreign to foreign" communications when the e-mail or phone call crossed networks in the United States. (LA Times)
The ruling imposed new restrictions on the National Security Agency's ability to intercept communications that are between people overseas but that "transit" U.S. data networks operated by Internet service providers and telecommunications companies.
"The recent FISA court ruling was a blow to the Bush administration, which had bypassed the court when it launched the NSA program in 2001." LA Times
Why did Bush push this through the last weekend of the congressional session?
It was well-timed. Because earlier in the year, when he submitted to FISA oversight, FISA court decided that his procedures were unlawful.
"It was only after that ruling that Director of National Intelligence Mike McConnell this spring began urging Congress to pass an emergency "fix" that would clarify and specifically grant the NSA authority to tap switches based in the United States without review by the FISA court." (Michael Isikoff & Mark Hosenball, Newsweek)
Bush's response? To demand that Congress give his power to once again circumvent the FISA court.
The reason they waited until the last days of the congressional session? To apply pressure on our lawmakers.
Imagine that you were given a traffic ticket for speeding and instead of going to court to defend yourself and claim your were not speeding - you just tell Congress that you need all speeding laws to be rewritten so that they no longer apply to you individually anymore.
And, Bush turned up the heat right at the end of this congressional summer session, knowing that the legislators needed to get home to their districts for the month of August. This left the legislators precious little time to combat Bush's huge media blitz. Bush attempted to scare Americans and he complained that Congress wasn't giving him the tools to fight terrorism. Congress could have helped the American people understand that Bush already had all the powers he needs to fight terrorism, but, they ran out of time.
I do think that Pelosi, Hoyer and others could have predicted this last minute blitz by Bush and should have done more in advance to prepare and defend against it.
Why in the heck would Congress cave in to this unreasonable demand?
Plainly - Bush engaged in fear mongering again. He said that "chatter" was increased and that some of his officials felt in their "gut" that threats to America may be on the rise. Of course, the leadership in Congress did not place great confidence in Bush's assessment of threat, but, they probably feared that American voters would. They also probably feared that if more anthrax showed up in D.C. post offices, that Bush would be able to successfully blame this on Congress for not giving him these broad and unfettered freedoms to spy on us.
"The Democrats can rest easily over the August recess knowing that they haven't left themselves vulnerable to political attacks. The rest of us can worry about whether the NSA is using its enhanced surveillance authority to spy on Americans." (Mother Jones)
Why did House Speaker Nancy Pelosi and the Democratic leadership bring this bill to a vote over the weekend, instead of delaying it until fall or killing it outright?
The short answer? Political concerns. House of Representatives rules let the majority party control the schedule of votes, so Pelosi had the power to push back a vote indefinitely. In fact, Pelosi even said the legislation "does violence to the Constitution of the United States."
The law that passed last weekend will expire in six months. During the next six months, hopefully sooner rather than later, the Democrats in the Senate and House will write a new bill that firmly requires court oversight - permanently.
The fear mongering from the White House has got to stop. And even if the president's fear provocations don't stop, the capitulation and "fear of lost votes" on the part of Congress has also got to stop. This country does not belong to the White House or the Congress. This country belongs to the American people. The American people do not want to be spied on by the Pentagon, the NSA, the FBI or the President.
"The whole point of the current FISA controversy is that Democrats wanted to enact a bill to allow warrantless eavesdropping of foreign-to-foreign calls, but the Bush adminisration's bill permits warrantless eavesdropping of foreign-to-U.S. calls. Nobody disputes that. Moreover, unlike for the 'Terrorist Surveillance Program,' there is no requirement in this law -- literally none -- that the person being surveilled be connected to terrorism in any way or even by an agent of a foriegn state or terrorist group.
"Any person -- even the most innocent -- can be subjected to warrantless surveillance under this new law" - Glenn Greenwald
House Speaker Nancy Pelosi, meanwhile, has already sent a letter to fellow Democrats Rep. John Conyers, chairman of the House Judiciary Committee, and Rep. Silvestre Reyes, chairman of the House Intelligence Committee, instructing them to craft a new bill that "responds comprehensively to the administration's proposal while addressing the many deficiencies" in the approved law.
"Six years ago, in the aftermath of 9/11, Congress rammed through the USA PATRIOT Act with little consideration of what that bill actually contained. Five years ago, Congress authorized a reckless and ill-advised war in Iraq. One year ago, Congress passed the deeply flawed Military Commissions Act.
"And late last week, a Democratic Congress passed legislation that dramatically expands the government's ability to conduct warrantless wiretapping, which could affect innocent Americans."It is clear that many congressional Democrats have not learned from those earlier mistakes, two of which happened when Democrats controlled the Senate. Once again, Congress has buckled to pressure and intimidation by the administration..."The American people see through these tactics, and don't buy the president's attempts to use the threat of terrorism to get what he wants any more. Unfortunately, 16 Senate Democrats and an Independent, as well as 41 House Democrats were all too willing last week to let the president successfully employ this ruse yet again...
"After all the wrong-doing by this administration, it was disheartening to see Congress bow to its demands one more time." - Senator Russ Feingold
"Legislation should not be passed in response to fear-mongering," said Rep. Rush Holt of New Jersey. But in the end, the Democratic leadership became fearful about appearing weak in the so-called "War on Terror" and interfering with intelligence gathering, and scheduled the vote before they left town.
"How could we have not have stood up for rights of civil liberties while ensuring the proper ability to go and listen, and just stayed during the recess if necessary. And I understand that our leadership in the caucus has to worry about how the public will perceive it, but I also know this, that ultimately, we have to, as Benjamin Franklin said, be concerned that those who give up...liberty in the name security, deserve neither liberty or security.
"This is a time that I strongly believe, we should have stood up and said no. Attorney General Gonzales, we're not going to let you decide the guidelines upon which you'll listen in on Americans." - Rep. Joe Sestak (D-PA), Think Progress
Which presidential candidates voted for or against the wiretapping bill? Voting against the bill: Democrats Hillary Clinton, Barack Obama, Joe Biden, Christopher Dodd and Dennis Kucinich. Voting for the bill: Republican Sam Brownback. The roll call vote for the surveillance bill (S. 1927) can be found here. If your legislator did not vote the way you think he or she should have voted, say something.
"We simply want protections for the civil liberties of people that have done absolutely nothing wrong." - Senator Russ Feingold
Crossposted at EverydayCitizen.com