Just after I made my New Year's resolution to educate the public when it comes to our mutual political history and government, readers began asking about recent votes in the US Senate expanding the role of intelligence agencies under the Foreign Intelligence Surveillance Act ("FISA"). As much as I like to make posts filled with bias opinions and irritating narratives, I felt a twinge of pain when I thought I had better let some folks know more about FISA and the Courts established under it. Why the tinge of pain? Because giving a biased opinion is always much more fun that writing about law. So why do so? Perhaps I could justify avoiding the topic of FISA because it is not New Years yet? Nah, that would be wimping out, just like our politicians in Washington! No! I will NOT wimp out and I will adhere to my promise to educate! So here goes.
Just this past week, the US Senate forwarded a Bill to President Obama renewing the Foreign Intelligence Surveillance Act ("FISA") through 2017. So what the hell is FISA? FISA was originally created back in 1978 to provide intelligence agencies the authority to snoop in on communications between foreigners without first obtaining normally required search warrants. In 1978, the intent was to provide intelligence services the ability to expand its spy networks on foreigners' communications under the guise of protecting our national security. It should be noted right here and now, "National Security" is an area assigned to the Commander In Chief under Article II of the Constitution and is a "penumbra" or shroud of powers broadly defined as legitimate and "Constitutional" as long as the stated (albeit ambiguous) objective is to protect Americans' civil liberties. What does that mean?
Anyway, FISA also created a secret "FISA Court" or "FISC". These Courts are so secret, Americans generally have no idea they exist and its proceedings are Top Secret. What goes on in these courts? They act in a way best described as a "Terrorism Grand Jury" wherein the government makes its case for additional intelligence gathering or worse* for alleged terrorists. The activities of FISC are so secret, the location of the actual court is shrouded in secrecy (it is allegedly found on a private floor in the Justice Department's building in Washington). Terrorists are never afforded the chance to confront accusers and have no Constitutional Rights considered or protected. Oh yes, the *, I almost forgot. The *worse could include the practice of rendition or "enhanced" interrogation techniques.
Back in 1978, Congress authorized FISA on a "temporary" basis so that it would have to be periodically "renewed." Obviously, there was wisdom involved in requiring periodic checks on agencies using the extraordinary powers created under FISA. Now back in 1978, the extent of FISA was never actually thought out, but after 9/11, the Act and the accompanying Court have seen their roles expand considerably. Under President George W. Bush, telecommunications companies were ordered to make all communications of all Americans available for search without a Court ordered warrant. When this became public, the "National Security" label was sought and Congress indemnified the companies from potential lawsuits for invasion of privacy by Americans. How many of you knew this? President Obama has not limited the FISC in any way either. And it gets better!
According to FISA, any communication obtained from a US Citizen without a warrant is supposed to be expunged from any record maintained by the FISC. But because of the inherently sensitive nature of the cases brought before the Court coupled with the fact proceedings before the Court are to be held in maximum secrecy, how would any of us know if the Government is not maintaining communication files on all of us?
So what does the US Senate just do? They quietly authorized FISA to be renewed through 2017. President Obama is expected to sign the Bill into law. I know I have not given you everything there is to know about FISA or FISC, but hopefully I have given you enough to scratch your head and make you begin to think whether our civil liberties are actually being protected and whether we can trust that someone impartial is actually overseeing FISA and its Court. But even more action by the Senate should give us additional pause! Why? Because in related action, the Senate this week rejected a bid to require FISC rulings affecting Americans' rights to privacy be "declassified" to ensure "transparency" to the Public.
Want to know what else the Senate did with FISA? They rejected a proposal requiring the government to obtain search warrants for records of Americans' transacting and communicating with third parties. Huh? What does that mean? It means the Senate believes any communication and/or transaction made by Americans over the Internet or via credit card are free game for the government to snoop into! And who voted for this? Our Senate did! And we elected these folks to protect US?
Is it now time to admit that the Internet and technology has outrun Court rulings that previously protected our use of mail or the telephone for communications? Is it now time for Americans to demand that our rights to communicate and transact over the Internet also deserve our Constitutional protection? It reminds me of Chief Justice William Howard Taft's ruling in Olmstead v. US (1928) wherein Taft opined that words communicated over a telephone wire should not be protected because once speech has left a person's mouth, it cannot be considered protected because it has been transmitted over a "wire." Which is exactly where the term "Wire-tapping" came from. Fortunately for Americans, the Supreme Court eventually caught up with the technology of the telephone and extended the constitutional protection requiring a search warrant before "tapping" wires. Can we say the same for today's Supreme Court? Perhaps not (yet) when some on the Congressional Science and Technology committees recognize the Internet is a "set of tubes" (Sen. Ted Stevens) or members of the House publicly admit their Internet "ignorance" (Rep. Mel Watt).
So true to my New Years resolution, you now have a "brief" of FISA and FISC. Does this information concern you? It should! Are all of the intelligence measures really abour protecting our civil liberties or taking them away? Happy New Year Indeed!
For more on Civil Liberties, See "How Our Government Really Works, Despite What They Say."
Just this past week, the US Senate forwarded a Bill to President Obama renewing the Foreign Intelligence Surveillance Act ("FISA") through 2017. So what the hell is FISA? FISA was originally created back in 1978 to provide intelligence agencies the authority to snoop in on communications between foreigners without first obtaining normally required search warrants. In 1978, the intent was to provide intelligence services the ability to expand its spy networks on foreigners' communications under the guise of protecting our national security. It should be noted right here and now, "National Security" is an area assigned to the Commander In Chief under Article II of the Constitution and is a "penumbra" or shroud of powers broadly defined as legitimate and "Constitutional" as long as the stated (albeit ambiguous) objective is to protect Americans' civil liberties. What does that mean?
Anyway, FISA also created a secret "FISA Court" or "FISC". These Courts are so secret, Americans generally have no idea they exist and its proceedings are Top Secret. What goes on in these courts? They act in a way best described as a "Terrorism Grand Jury" wherein the government makes its case for additional intelligence gathering or worse* for alleged terrorists. The activities of FISC are so secret, the location of the actual court is shrouded in secrecy (it is allegedly found on a private floor in the Justice Department's building in Washington). Terrorists are never afforded the chance to confront accusers and have no Constitutional Rights considered or protected. Oh yes, the *, I almost forgot. The *worse could include the practice of rendition or "enhanced" interrogation techniques.
Back in 1978, Congress authorized FISA on a "temporary" basis so that it would have to be periodically "renewed." Obviously, there was wisdom involved in requiring periodic checks on agencies using the extraordinary powers created under FISA. Now back in 1978, the extent of FISA was never actually thought out, but after 9/11, the Act and the accompanying Court have seen their roles expand considerably. Under President George W. Bush, telecommunications companies were ordered to make all communications of all Americans available for search without a Court ordered warrant. When this became public, the "National Security" label was sought and Congress indemnified the companies from potential lawsuits for invasion of privacy by Americans. How many of you knew this? President Obama has not limited the FISC in any way either. And it gets better!
According to FISA, any communication obtained from a US Citizen without a warrant is supposed to be expunged from any record maintained by the FISC. But because of the inherently sensitive nature of the cases brought before the Court coupled with the fact proceedings before the Court are to be held in maximum secrecy, how would any of us know if the Government is not maintaining communication files on all of us?
So what does the US Senate just do? They quietly authorized FISA to be renewed through 2017. President Obama is expected to sign the Bill into law. I know I have not given you everything there is to know about FISA or FISC, but hopefully I have given you enough to scratch your head and make you begin to think whether our civil liberties are actually being protected and whether we can trust that someone impartial is actually overseeing FISA and its Court. But even more action by the Senate should give us additional pause! Why? Because in related action, the Senate this week rejected a bid to require FISC rulings affecting Americans' rights to privacy be "declassified" to ensure "transparency" to the Public.
Want to know what else the Senate did with FISA? They rejected a proposal requiring the government to obtain search warrants for records of Americans' transacting and communicating with third parties. Huh? What does that mean? It means the Senate believes any communication and/or transaction made by Americans over the Internet or via credit card are free game for the government to snoop into! And who voted for this? Our Senate did! And we elected these folks to protect US?
Is it now time to admit that the Internet and technology has outrun Court rulings that previously protected our use of mail or the telephone for communications? Is it now time for Americans to demand that our rights to communicate and transact over the Internet also deserve our Constitutional protection? It reminds me of Chief Justice William Howard Taft's ruling in Olmstead v. US (1928) wherein Taft opined that words communicated over a telephone wire should not be protected because once speech has left a person's mouth, it cannot be considered protected because it has been transmitted over a "wire." Which is exactly where the term "Wire-tapping" came from. Fortunately for Americans, the Supreme Court eventually caught up with the technology of the telephone and extended the constitutional protection requiring a search warrant before "tapping" wires. Can we say the same for today's Supreme Court? Perhaps not (yet) when some on the Congressional Science and Technology committees recognize the Internet is a "set of tubes" (Sen. Ted Stevens) or members of the House publicly admit their Internet "ignorance" (Rep. Mel Watt).
So true to my New Years resolution, you now have a "brief" of FISA and FISC. Does this information concern you? It should! Are all of the intelligence measures really abour protecting our civil liberties or taking them away? Happy New Year Indeed!
For more on Civil Liberties, See "How Our Government Really Works, Despite What They Say."
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