Remember the George W. Bush warrantless wiretapping program? The one that was so illegal that Congress had to pass a special law to ensure that no one was prosecuted for it or sued by their customers for facilitating it? And was found by independent reviewers to be pretty pointless anyway? And was then brilliantly codified and written into stone by Congress? And which almost immediately went off the rails, being used to collect all sorts of stuff it wasn’t supposed to? It’s back!
The FISA Amendments Act of 2008 (FAA) rewrote our surveillance laws, which had generally required a warrant or court order for surveillance of people in the US. Under the FAA, the government can get a year-long programmatic court order for general bulk collection of Americans’ international communications without specifying who will be tapped. It is up to the administration to decide that on its own after the fact, without any judicial review. The major requirement is that no particular person in the US should be targeted.
While billed as a foreign surveillance program, it also authorizes the collection of Americans’ international communications – meaning one end of the communication is in the US – and therefore implicates the Fourth Amendments rights of all Americans. Once the National Security Agency sucks up these phone calls, texts, emails and Internet records, it can use them pursuant to secret rules that they swear protect our privacy.
The good news is that Congress had the foresight to subject this sweeping surveillance authority to a sunset provision, and it is scheduled to expire in its entirety at the end of the year. More concerning though is that, according to press reports, this afternoon* the Select Senate Committee on Intelligence will be secretly approving legislation to extend that law. No public hearings; no public oversight; no thorough debate about how this law has been used and how it has affected Americans.
While the Judiciary and Intelligence Committees have been receiving classified reports, it’s time for a public vetting of the FAA and for meaningful amendments to better protect our privacy. Even Sens. Ron Wyden (OR) and Mark Udall (CO), with their secret briefings and cleared staff, don’t understand how this sweeping surveillance law is affecting everyday Americans. And when they asked, the DNI said it isn’t even ‘reasonably possible’ to estimate how many Americans are swept up in the NSA’s expansive dragnet.
That sunset provision is set to expire and the Obama administration, just like it did for the Patriot Act, is demanding its full-scale renewal without a single change or reform:
A key Senate panel voted Tuesday to extend a contested 2008 provision of foreign intelligence surveillance law that is set to expire at year’s end.
The vote is the first step toward what the Obama administration hopes will be a speedy renewal of an expanded authority under the Foreign Intelligence Surveillance Act to monitor the U.S. e-mails and phone calls of overseas targets in an effort to prevent international terrorist attacks on the country.
Director of National Intelligence James R. Clapper Jr. called the move by the Senate Select Committee on Intelligence “important” to the effort to ensure that authorities can identify terrorist operatives and thwart plots. Extending the provision is the intelligence community’s top legislative priority this year.
In February, Attorney General Eric Holder and Director of National Intelligence James Clapper wrote a joint letter to Congressional leaders demanding “speedy … reauthorization of these authorities in their current form” — “without amendment.”
The most transparent administration ever - bonus: the 2008 Act included a “look forward not backward” provision maintaining retroactive immunity from prosecution for the telecoms complicit in the surveillance of American citizens. I’m not sure if that was a guarantee-for-life; however, if the Act is reauthorized it won’t matter anyway.