The NSA, FISA, And The Magical, Imaginary, Benign Presidency | VALID | #TWIBnation

The NSA, FISA, And The Magical, Imaginary, Benign Presidency

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I’ve been trying for days now to collect my thoughts on the outrage du jour. I’m referring, of course, to last week’s revelations about the Obama Administration’s surveillance activities. On Wednesday, we learned that the National Security Agency had obtained an order from the Foreign Intelligence Surveillance Court, which, as Mother Jones’s David Corn reported, “compel[led] [a] Verizon [subsidiary] to give the NSA what’s known as ‘metadata,’ such as the time, length, and location of calls—not the customer’s identity.” Then, on Thursday came news of the Administration’s data-mining program known as “PRISM,” which Bob Cesca explains in some detail here.

I suppose the easiest and most accurate way to respond to the whole matter is to say: That’s awful. The government shouldn’t be doing that. But lawyers don’t get paid to give two-sentence responses, and so I won’t.

When a story like this breaks, the first thing people tend to do is to lash out at Pres. Obama, and that’s understandable. The buck stops with him, after all. But if anyone cares about, you know, fairness, the truth is there’s plenty of blame to go around.

Of course, all of this began under the Bush Administration with the passage of the USA PATRIOT Act and Bush’s attempt to skirt the requirements of the Foreign Intelligence Surveillance Act by intercepting communications without a FISA court order. And initially, the courts rejected the Bush approach.

Striking down Pres. Bush’s warrantless wiretapping in contravention of FISA, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan wrote:

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III [of the Omnibus Crime Control and Safe Streets Act of 1968]) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

American Civil Liberties Union, et al. v. National Security Administration/Central Security Service, et al., No. 06 CV 10204 (U.S. Dist. Ct. ED MI, Aug. 17, 2006) slip op. at 30-31 (.pdf file).

Consequently, Judge Taylor ruled that Pres. Bush’s program violated both FISA and the Fourth Amendment, and issued an injunction against intercepting telephone calls other than in accordance with FISA. However, she dismissed the balance of the plaintiffs’ claims relating to the Bush Administration’s broad data-mining program, “because litigation of that claim would require violation of [the government’s] state secrets privilege.” Id. at 42.

The matter didn’t end there, however. The Bush Administration appealed Judge Taylor’s injunction to the U.S. Court of Appeals for the Sixth Circuit, where the case was thrown out in its entirety on the grounds that the plaintiffs–the ACLU and several other organizations, including the Council On American-Islamic Relations and the National Association of Criminal Defense Lawyers–lacked standing to challenge the government’s actions. See American Civil Liberties Union, et al. v. National Security Agency, et al., Nos. 06-2095/2140 (6th Cir. July 6, 2007).

Thereafter, Congress passed the FISA Amendments Act of 2008, effectively legalizing the Bush Administration’s program of intercepting certain kinds of telecommunications and other data without prior court orders, but with certain minimal procedural protections. Unsurprisingly, the Obama Administration has cited FISA Section 702, which was added in the 2008 Amendments, as the legal basis for PRISM.

So, this is where we are. Both the court system and Congress had opportunities to rein in the executive branch’s ability to intercept telephone and internet communications. Both the court system and Congress whiffed. And so, it appears, what the President has done–as odious as it may be–is legal.

Which is why the present fixation on the left with Pres. Obama, individually, is confounding. Even if Pres. Obama, out of the kindness of his heart, refrained from using powers that Congress gave him and that the courts failed to check . . . those powers would still exist. FISA, as amended in 2008 and renewed from time to time, would still permit this president–and the next, and the next, and the next–to obtain massive quantities of data we don’t want the government to have. And you can bet the farm that even if this one refrains from gathering that information, the next one won’t.

It’s not that I like what the president is doing, because I don’t. It’s that our civil liberties should not depend on a magical, benign president who elects to refrain from using legal means to gather information we don’t want the government to gather. Because that president doesn’t exist, has never existed, and will never exist.

So, the focus should be less on Pres. Obama vs. civil liberties and more on what can Congress do to rein in the executive branch and thereby fix the problem. If, you know, you really want to fix the problem.

David Von Ebers

An evil trial lawyer from Chicago, which makes me almost as bad as Barack Obama himself. Except, I am a Cubs fan, unlike our President, and so, as the kids say, I AM SHAME. I blog about legal issues, politics, sports, music (that long-haired rock 'n roll music all the kids are into), and, frequently, the interaction between any and all of the above. When I'm not busy undermining the Constitution or circumventing your freedoms, I run, watch too much sports on the teevee, and hang out with my long-suffering wife and three kids.

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  1. Cappadonna June 11, 2013 at 12:01 pm

    Yeah, well, David – you can’t let the a thing like logic get in the way of the Netroots gathering of pitchforks and torches for the Beige Man on Pennsylvania Ave.

    Deciding to say ‘the government is all evil’ and hiding in your lead house, listening to Glenn Greenwald, Noam Chomsky & Alex Jones all day is the exact opposite of what we should be doing. The reason why this NSA issue exists is that frankly, the American people (myself included) left the heavy lifting to an elite and/or faithful few.

    Far too many civil libertarians threw up their hands and stop fighting effectively (and getting our blogosphere knitting circles or going to rah-rah lefty rallies ain’t being effective, but let me not go into how the Left sucks right now)

    And the average American is terrified of brown people with bombs on their backs – we happily gave away our liberties with nary a peep.

    Again, the issue isn’t really Obama – because he can only do what the law allows him to do. Its telling Congress to reign in these powers over replacing our Representatives with people who will.

  2. Randle Aubrey June 11, 2013 at 12:27 pm

    And your very last sentence is where the problem lies. The national security complex is enormously profitable, and lines the pockets of many folks on Capitol Hill. Many of them have essentially been bought to look the other way and/or rubber stamp anything the executive branch does. Nobody wants to lose that ‘campaign’ money; after all, there’s a lifestyle to uphold.

    The only way Congress is going to listen to the public is if they’re required to pay a larger political price for ignoring us than they are ignoring the defense contractors. That requires votes. LOTS of votes. Not to mention shutting down Citizens United, one of the biggest steps towards academic fascism this country’s ever faced. The private sector essentially runs our government now, and applies the same competitive strategies towards marketing political parties as it does household goods. It’s an uphill battle, to say the least.

  3. Jgreen June 12, 2013 at 8:38 pm

    While I’m not nearly as eloquent as either the author of the article or the two who commented on same, I know when something is wrong. Just because a secret court with secret judges makes secret rulings about secret programs doesn’t make it right, or in my opinion legal. Who is making the opposing arguments in the FISA court? If noone is, then how can we accept the findings, even if we knew what they were?

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