Since I was patriotically indignant regarding habeas corpus rights for Gitmo detainees vis-à-vis the Constitution, it seems only fair that I turn my attention to the Foreign Intelligence Surveillance Act (FISA). The problem is that I don’t quite understand the issues enough for what can be my impressively dramatic flair of righteous indignation. This is a simplistic deconstruction and if I’m wrong anywhere, please correct me. That, of course, is assuming anyone is there reading Anonymous Sec’s. Bueller? Bueller?
FISA was created in 1978 in the course of investigating Nixon “using federal resources to spy on political and activist groups,” thus violating the Fourth Amendment of the U.S. Constitution. The Fourth Amendment dictates that the government has to have a proven reason to go through your belongings: your house, your correspondence (telephone, letters, e-mails), etc. They cannot just do it because they think maybe you might be perhaps doing something illegal. Probable cause for search and seizure has to be proven reasonable to a judge who then issues a warrant. Law & Order 101.
FISA’s purpose was to provide:
Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrantless surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
Okay. Loftier climes than I inhabit, but I’ll go with that so far, particularly with the judiciary and congress watching.
Then 9/11 scared the bejeesus out of practically everyone in the country, not the least of whom was President George W. Bush. (Wait a hot minute, here. Now that I consider it, Bush reacted to 9/11 from a position of wide-eyed screaming fear. Okay for we regular folk, but good gugga-mugga, he's the president.) His response was to use the National Security Agency to end around FISA’s purpose to surveil foreign entities and individuals, by instituting warrantless domestic wiretaps of international communications of U.S. parties and using the telecoms to do it. Meaning, if your dear gray haired Turkish grandmother was happy as all get out for your regular Sunday call from her baby-boo, the NSA could listen in and didn’t have to get permission from anyone. If you belonged to, say, a nerdy fanfic roleplaying website with members from all over the globe, including the Middle East, the government could read your overwrought and overdramatic romance ‘ships and laugh their asses off, without permission from anyone.
All safe and well, you say. There’s nothing in the Turkish conversation, or the ravings of geeky roleplayers to alarm the government. You say that. I say that. But what guarantees that the government doesn’t find something terroristically subversive in my characters Parasol and London’s vampiric sex romp through Compton. They are not bound by law to give a reason for their alarm.
On June 20, 2008, the FISA Amendment Act was before Congress. The bill was two-fold: securing the ability of the government to continue with domestic warrantless surveillance and granting telecoms immunity from prosecution for facilitating that surveillance.
Democrats, in the majority, offered little to no resistance in defense of the Fourth Amendment or in support of due process, as if Bush, the Republicans and the bill were the Borg.
Sen. Obama gave a rather inconceivable endorsement of the bill, vowing however “work in the Senate to remove this provision so that we can seek full accountability for past offenses.”
Something interesting to note: On Thursday, June 19, 2008, Sen. Obama met with the Congressional Black Caucus, many of whom were caught in the Borg FISA thrall. According to reports, Sen. Obama got into a slap fight with Rep. Keith Ellison, one of two Muslim members of Congress, over the Muslim head scarf brouhaha at one of the Senator’s rallies. The reports end there with no mention of what conversation was had over what they had to know would be a major deal coming down the pike the next day. Did they strategize? Did they actually discuss their capitulation in reasonable terms? Did they realize that Democrats are in the majority? Oh, to be a fly on that wall. Jack and Jill Politics has a list paying mind to the CBC members behind the curtain who voted for the bill.
Glenn Greenwald, a blogger for Salon and former constitutional litigator, virtually lost his mind over the bill. He has pages…pages…of recriminations for Congress and Sen. Obama. His points, though lengthy, are ex-constitutional litigator smart…like a certain CodeHead Lawyer I work for. And he’s really really mad at Obama.
Again, if there’s anyone out there who believes I got something wrong in my simplistic FISA explanation, or anywhere else for that matter, I welcome the correction.