Monday, June 23, 2008

The New Surveillance Bill: The Worst of Both Worlds

As long as it looks like we're going to be stuck as a nation with the abysmal new FISA law currently before the Senate we may as well take a closer look at some of its most Constitution crushing aspects.

As we know, far too many Democrats in the House capitulated to White House and Republican fear-mongering and granted telecoms retroactive immunity and expanded surveillance powers. Unfortunately, prospects of defeating the bill don't look much better in the Senate, particularly in light of Obama's reversal on the issue. He now says he will vote for the bill but wants to try to amend the part that grants telecoms immunity.

This effort will of course fail, and therefore really does nothing to appease those of us who feel strongly that the rule of law matters, the Constitution matters, and this administration must be held accountable. The fact is, unless Obama is willing to mount a vigorous campaign to explain to the public why this bill must be defeated, including a filibuster, talk is meaningless.

I suppose the optimist in me, based on indications from Obama earlier in the year, is that even if this bill does become law, and Obama does vote for it, as President he will still be open to conducting a Justice Department led investigation into the telecoms...which this legislation DOES NOT prohibit.

But politics aside - but please urge Obama, Dodd, and Feingold to filibuster it here - let's get into some of the bill's details with Aziz Huq, co-author of a new book on national security and the separation of powers called "Unchecked and Unbalanced".

He writes:

Hailed in some quarters as a "compromise" after the capitulation of the Protect America Act of 2006, the new surveillance bill is nothing of the kind: on core issues of privacy and accountability, there is no compromise, since little in the measure honors those two values


Begin with accountability...They argue that protection is necessary to ensure future cooperation, even though the telecoms were not deterred by the fact their past actions were clearly in violation of federal law.

In fact, immunity is on the White House front burner for wholly different reasons: pending lawsuits against the telecoms are the best opportunity for the American public to learn what kind of illegal surveillance occurred under Bush's watch, and how existing law against warrantless wiretapping was circumvented. As bad as the telecoms will look, the Administration will look worse as more of its cynical and results-oriented reasoning and contempt for constitutional rights is fully aired.


...the court can only look to see if the defendant has the piece of paper described in the law, and if it does, the court must dismiss the case. By interposing a certification requirement, and directing judicial attention to a piece of paper, the bill fends off judicial scrutiny of what in fact occurred...And there is every reason to believe that the telecom defendants will have the necessary piece of paper.


The bill, in short, is worse than granting absolute immunity: it is an effort to suborn the legitimacy of the federal courts by having a judge rubber-stamp the dismissal of cases against the telecoms without looking at the substance of what, in fact, was done. It reduces the separation of powers to a check-the-box exercise.


Under the bill, the government can create new surveillance programs, each lasting a year, that focus on "persons reasonably believed to be located outside the United States." Provided that spying agencies do not "intentionally target" someone "known" to be in the United States, or intend to target "a particular, known person reasonably believed to be in the United States" (and with some other minor caveats), large-scale acquisition of data is permitted.

...the courts will not examine the actual surveillance programs, let alone individual cases of surveillance. Again, the bill interposes a certification requirement between the court and the facts.


This is a radical break from the FISA regime created in 1978, and risks severe harm to Americans' privacy interests. The most important break with FISA is the absence of any individualized warrant requirement: it is now whole collection programs that are authorized and reviewed. And the abandonment of discrete, individualized legislative authorization and judicial review is only the first of the bill's troubling features.

The new provisions also allow the government to create sweeping new programs that are formally targeted at overseas persons, but that predictably sweep in large. The provision's loose language about targets -- who do not in fact have to be overseas, only reasonably believed to be overseas -- gives the government substantial latitude in crafting the parameters of its searches.

As True Majority's action alert points out, "It's hard to overstate how much is at stake in this battle. Passing retroactive immunity would put an end once and for all to lawsuits which have the potential to expose the full extent of Bush's illegal wiretapping program. This is literally one of the last avenues we have to hold the Bush administration accountable before they leave office. On this question, there can be no doubt, immunity for phone companies is the same as immunity for George Bush and Dick Cheney."

Click here to read the article in its entirety.

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