Obama's people and all the senators who supported FISA are simply lying to us. Accept it. From Glen Greenwald, at Salon.com:
(updated below)
This afternoon, I spoke with Jameel Jaffer, the Director of the ACLU's National Security Project, regarding the two legal proceedings commenced today by the ACLU challenging the constitutionality of the new FISA law. The roughly 20-minute discussion can be heard here.
The ACLU filed one action in the FISA court, requesting that -- contrary to how the FISA court normally works -- all proceedings regarding the constitutionality of the FISA law be open to the public and transparent, and that the proceedings be adversarial (i.e., that the ACLU -- rather than just the Government -- can participate). The other action was filed in a federal court in the Southern District of New York, alleging that the provisions which vest vast new warrantless eavesdropping powers in the President are, for multiple reasons, violative of the Fourth Amendment of the U.S. Constitution. The ACLU's lawsuits do not challenge the constitutionality of the telecom immunity provisions of the new FISA law because those sections will be challenged by EFF and local/affiliate ACLU groups in separate actions. The legal documents filed today by the ACLU are here.
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. As Georgetown Law Professor Marty Lederman wrote today (emphasis his):
The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.
On a related note: there's no question that yesterday was a horrendous day for people devoted to the preservations of basic Constitutional protections and the rule of law, but -- as I said in the prior post from today -- it is hardly the end of anything, but the beginning. Sen. Chris Dodd -- whose stalwart, relentless efforts to stop this law were nothing short of heroic, as those efforts often provoked substantial hostility among many of his colleagues -- sent around the following email today to his mailing list highlighting the positive aspects of the battle:
Yesterday was a sad day for the United States Senate. It is my hope that the courts will undo the damage done to the Constitution. But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months. We came together – all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease. I'm sorry we weren't successful. I just hope I'm lucky enough to have you by my side in the next fight, whatever that may be. Thanks for all you've done. Chris Dodd
It is my hope that the courts will undo the damage done to the Constitution.
But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.
We came together – all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.
I'm sorry we weren't successful.
I just hope I'm lucky enough to have you by my side in the next fight, whatever that may be.
Thanks for all you've done.
Chris Dodd
It really was a true spontaneous outburst of citizen activism that prevented that from happening. As a result, new coalitions formed. There will now be lawsuits challenging the constitutionality of this travesty of a law. The activism that arose over this bill did indeed -- as Sen. Dodd said -- force these issues into the public discourse, and will serve as a foundation, a launching pad, for far more potent and effective efforts against future assaults of this type from the political class on the rule of law and core Constitutional protections. It's important that the pervasive, justifiable anger over what happened yesterday be channeled not into defeatism, but into constructive resolve to create still more effective methods for battling against these erosions.UPDATE: 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.
The whole point of the Bush NSA warrantless spying program was to enable the administration to spy on people in secret -- i.e., without the judicial oversight the law required. Thus, the only people outside the Executive Branch who have any real knowledge at all of how these illegal spying powers were exercised are a small number of Senators on the Intelligence Committee who have been briefed by Bush officials, but they are barred by law from saying what they know. Nonetheless, here is what one of those members -- Sen. Russ Feingold -- said during his remarks on the Senate floor regarding the new FISA bill, as highlighted by Howie Klein. In a minimally rational world, these revelations from Sen. Feingold would be major, major news:
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.
Think about what it says about our country -- about the notion of an open, transparent government -- that all of this remains secret and, thanks to this new FISA law, will remain so. We have no idea what our Government has been doing in terms of how it spies on and keeps records of our communications, even with regard to programs that their own top officials said were patently illegal and which allegedly stopped years ago. We just happily remain in the dark about all of it, telling ourselves that there's "no evidence" of abuse and therefore no reason to be particularly concerned about it.
Worse, both parties act in unison not only to conceal all of this from ever becoming disclosed to American citizens, but also to protect the lawbreakers without even knowing what they did. Meanwhile, those for whom allegiance to a new Leader is their overriding mission suddenly pop up (now that it's not just Bush endorsing all of this but their new Leader as well) in order glibly to dismiss all of these concerns -- about unconstitutional and illegal spying, both past and future, and the destruction of the rule of law -- as Leftist "hysteria". What's most amazing -- and most disturbing -- are the levels of secrecy, lawlessness, and passivity which so many Americans have been trained to accept.
-- Glenn Greenwald
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