Authors note: This is a repost from my blog Progressive World Review
Wasting no time, the ACLU has filed a law suit over the new FISA legislation. While the primary complaints from civil libertarians are that the new law clearly violates the fourth amendment by allowing illegal, warrantless searches, as well as defying the rule of law by giving telecoms legal immunity without even knowing exactly what they’ve been up to, the ACLU has used as grounds for their suit, the fact that eavesdropping without warrants or any oversight at all, potentially violates privileged communications such as phone calls and emails between attorneys and clients,
The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work – which relies on confidential communications – will be greatly compromised by the new law.
Additionally, the ACLU is calling for all proceedings pertaining to the scope or constitutionality of FISA be open to public scrutiny,
In a separate filing, the ACLU asked the Foreign Intelligence Surveillance Court (FISC) to ensure that any proceedings relating to the scope, meaning or constitutionality of the new law be open to the public to the extent possible. The ACLU also asked the secret court to allow it to file a brief and participate in oral arguments, to order the government to file a public version of its briefs addressing the law’s constitutionality, and to publish any judicial decision that is ultimately issued.
Glenn Greenwald raised two particularly salient points that have been mostly overlooked while the discussion has focused mostly around the very important telecom immunity aspects. First, the new law goes beyond simply legalizing Bush’s blatantly illegal spying on Americans, it actually allows for spying on Americans not even suspected of engaging in terrorists activities or any criminal behavior at all,
In the podcast, Jaffer details exactly what warrantless surveillance powers the new FISA bill vests in the President, along with the reasons they are so pernicious. He underscores the extraordinary fact that the surveillance program implemented by Congress yesterday does not merely authorize most of the President’s so-called “Terrorist Surveillance Program” that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the “target” of the surveillance have any connection whatsoever to Terrorism, nor is there any requirement that the Government believe the “target” is an agent of a foreign power or terrorist organization, or even guilty of any wrongdoing at all. (emphasis original)
This is extraordinary. The whole point of FISA in the first place was to stop the kind of abusive surveillance that we’ve discovered has already occurred. This isn’t some kind of abstract concept we’re talking about, we know the government has engaged in unconstitutional activities in the past and FISA was enacted to prevent future occurrences. For example, the government conducted extensive espionage operations against Dr. Martin Luther King Jr., wiretapping his phones and bugging his hotel rooms and this is a man that could hardly be considered a terrorist or even subversive considering we celebrate his birthday as a national holiday.
The whole point of our system of checks and balances is that government is not to be trusted without oversight. History is replete with examples of unchecked government power resulting in tyranny including examples from our own not too distant history. Can anyone honestly say that the Founding Fathers would agree to this level of unchecked power?
The second point Greenwald brings up is just how disingenuous defenders of the new legislation are when they claim that this is all much ado about nothing. The fact is; nobody knows what the real affect of this law will be because nobody knows exactly what Bush has been up to, nobody except a handful of Senators who are legally required to remain silent,
The most overlooked fact in the entire FISA debate — the aspect of it that renders incoherent the case in favor of the new FISA law or even those who dismiss its significance — is that virtually nobody knows what the spying program they’re immunizing entailed and towards what ends it was used — i.e., whether it was abused for improper purposes. Even those who acknowledge that the warrantless spying program was illegal like to assert that it was implemented for benign and proper counter-terrorism purposes (see Kevin Drum making that claim here) — but they have absolutely no idea whether that is true. None. Zero. To assert that is simply to make assertions with no basis whatsoever.
There has been no Congressional investigation into the NSA program — meaning an effort to compel the Bush administration to turn over to Congress information about who was subjected to the illegal, warrantless spying and towards what purposes. Back in March, 2006, even the Senate Intelligence Committee — the core function of which is “to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States” — voted along party lines against conducting hearings into the NSA spying program. (emphasis original)
This is the state of affairs today. Our government is supposed to be transparent, citizens are supposed to know what’s going on or how else can they be expected to make informed decisions about who they want representing them? Yet our political class, the so called “experts” are ready to trust the government with virtually unchecked power without having any idea of what’s really been happening. It’s impossible to overstate just how un-American this attitude is. This is authoritarianism at its finest, just trust the government to do the right thing and always act in our best interests with little or no checks on their power. And it’s this same crowd that usually complains about how we’re turning into a welfare state, how we shouldn’t expect government to “take care of us,” and yet we’re supposed to allow government to peek into our most private communications and just trust them not to abuse this authority. Simply astounding.
This is what Russ Feingold, one of the Senators that does know what Bush has been up to, had to say about FISA, (h/t Glenn Greenwald) (emphasis original)
I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure.
Needless to say that it’s imperative the ACLU’s efforts are not in vain. Don’t look for anything to change if the Democrats take the oval office in the next election. It’s the Democrats who are responsible for this travesty along with the explicit approval of the Democratic candidate for president.
Filed under: Politics