The Washington Post today has a front page article entitled NSA Spying Part of Broader Effort, which has come to light as part of the Administrations smoke screen to protect Attorney General Alberto Gonzales from perjury charges, with the additional cloak of classified thrown over any "facts" about anything and everything having to do with the TSP (Terrorist Surveillance Program), any of its tendrils, i.e. related surveillance (or whatever) programs, and anything relative to what Mr. Gonzales was actually referring to in his testimony before the Senate Judiciary Committee.
As if this isn’t Kafkaesque enough, the two Democratic Leaders of Congress, Nancy Pelosi and Harry Reid, are about to become party to this usurpation of civil liberties and constitutional protections, as evidenced by a nuanced propaganda version of this story put forth by the New York Times (AP), entitled Democrats Signal Deal on Terrorism Law.
It is worthy to note that the NYT, in the past several days, has offered an op-ed by Kenneth Pollack and Michael E. O’Hanlon (of which I wrote about here) that is now being used by John McCain and Vice President Cheney, et al, as proof that the surge is working (see Think Progress), slanted articles without relevant background of the issues involved, like the one referenced above, front page articles on Rudy Giuliani’s health care/tax cut proposals (re-packaged Bush with extended expiration date), and other detritus that could cause one to infer that Murdoch bought the NYT, along with the Wall Street Journal. Unfortunately, there is not space here for a digression into the co-opting and degradation of the MSM that is unfortunately extant.
It was over a year and a half ago that we, here in the progressive blog-writing community, were discussing, with either opprobrium or varying degrees of acquiescence or even supportive legal discourse, the TSP. Most were rightly outraged by the apparent illegality of the program and its broader implications on a free society. Glen Greenwald held the most complete, often contentious, debates on the subject. His irrefutable compendium of facts on the subject can be found here, which should be perused thoroughly and immediately.
It is somewhat common for new people to show up at this blog armed with the Administration's NSA legal defenses and then start demanding that these arguments be addressed. As a result, it is necessary for me to point out periodically that, along with many other people, I spent considerable time in the weeks immediately after the NSA scandal first arose hashing out all of these legal arguments.
I didn't just wake up one day and leap to the conclusion that the Administration broke the law deliberately and that there are no reasonable arguments to defend that law-breaking (as many Bush followers leaped to the conclusion that he did nothing wrong and then began their hunt to find rationale or advocates to support this conclusion). I arrived at the conclusion that Bush clearly broke the law only by spending enormous amounts of time researching these issues and reading and responding to the defenses from the Administration's apologists. – Glenn Greenwald
Yesterday, mcjoan wrote a good piece asking, "FISA ‘Reform’: What’s the Rush?" (though why "reform" in quotes, and rather than, "what’s the rush?", wouldn’t a better question have been "why?") that garnered a couple hundred responses; some of which were actually on topic.
These changes, which Republicans are trying to sell as "technical fixes" go far beyond what might be necessary to update FISA. Those fixes are addressed by two pieces of legislation--the Schiff/Flake NSA Oversight Act (H.R.11), which would modernize the Foreign Intelligence Surveillance Act (FISA) to respond to changes in technology and new threats, but would retain court supervision over domestic electronic surveillance. In the Senate, Feinstein and Specter have proposed legislation that would streamline the legal process for obtaining warrants. These are truly technical fixes that are reasonable responses to the need to help our intelligence services become more nimble, without sacrificing the 4th Amendment.
Incidentally, this article is still getting comments; scary ones from someone with the sobriquet catfish who should be battered, skewered, deep-fried, and summarily eaten and defecated. There is still a minor thread of participants who think that perhaps there are "things we don’t know", and that, perhaps, our governmental leaders know what is best for us in regards to listening in to our phone and e-mail conversations without a warrant. Perhaps a quick review of the law in this regard is in order, as per a Statement by NSA Director Lt. Gen. Michael V. Hayden, 12 April 2000 :
There are certain restrictions imposed by E.O. 12333 upon all intelligence collection activities engaged in by the Executive Branch agencies. Intelligence collection must be conducted in a manner "consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded." (Sec. 2.1). These include the Fourth Amendment's prohibition against unreasonable searches and seizures. Intelligence collection must not be undertaken to acquire information concerning the domestic activities of U.S. persons. (Sec. 2.3(b)). The least intrusive collection techniques feasible must be used in the United States or against U.S. persons located abroad. (Sec. 2.4). Finally, agencies in the Intelligence Community are prohibited from having other parties engage in activities forbidden by the Executive Order on their behalf. (Sec. 2.12) This means that NSA can not ask another country to illegally spy on U.S. persons on our behalf, and we do not...
Legislative Oversight
As you are fully aware, the intelligence committees conduct routine oversight of NSA activities. The committees regularly call for detailed briefings on NSA's collection activities and the procedures in place designed to protect the privacy rights of U.S. persons. Committee staff routinely visits NSA Headquarters and field sites as part of its oversight activities. The committees also receive semi-annual reports from the Department of Justice concerning NSA's activities under the Foreign Intelligence Surveillance Act. As discussed above, NSA has in place procedures for our FISA and other activities to ensure that the Agency acts in a manner that protects the privacy rights of U.S. persons. These procedures, as well as any subsequent changes, are reported to the intelligence committees prior to implementation. Further, NSA is required to: keep the committees fully and currently informed of all intelligence activities, including any significant anticipated intelligence activity; furnish any information on intelligence activities requested by the committees to carry out their oversight responsibilities; and report to the committees any illegal intelligence activity. Recently, this Committee requested NSA documents on a number of legal topics related to NSA's collection activities. NSA has fully complied with that request and met with Committee staff on several occasions.
Section 309 of the Intelligence Authorization Act for FY2000 (Pub. L. No. 106-120) called for me to submit a report to Congress prepared jointly with the Attorney General and the Director of Central Intelligence providing a detailed analysis of the legal standards employed by elements of the Intelligence Community in conducting signals intelligence activities, including electronic surveillance. The report we submitted in February of this year clearly demonstrates that there are legal standards and procedures in place to protect the privacy rights of U.S. persons when NSA and other Intelligence Community entities conduct electronic surveillance.
Judicial Oversight
The Foreign Intelligence Surveillance Court (FISC) is authorized by the Foreign Intelligence Surveillance Act to issue court orders for electronic surveillance directed against foreign powers or their agents. In reviewing applications for court orders, the FISC judges scrutinize the targets, the methods of surveillance, and the procedures for handling the information collected.
As we know, after 9/11/01, changes were made both to FISA and the scope of permissible homeland security tactics by the behemoth Trojan horse known as the Patriot Act. Nevertheless, the TSP (and now, all of its spawns) has taken us from Orwellian acquiescence to post-apocalyptic hebetudinous somnambulating. Right at the incipient moment of finally taking down one of the corrupt, prevaricating usurpers of our Constitution, i.e. Mr. Gonzales on perjury charges, some one rings the doorbell and leaves a bag full of shit on fire on the step, and we are about to stomp on it. (Too much?) Are we all so worn down by the Rovian shape-shifting of facts and faux news, and by the Tony Snowjob doublespeak, the mind-boggling acquiescence of our Democratic leaders, the blatant manipulation of facts, i.e. death tolls of our soldiers, in Iraq to support an illegal and immoral agenda, etc. that we can no longer resist? You know, if martial law, i.e. imperium in imperio, is actually imposed, it will be a little too late to take to the streets, unless you want to get shot or disappeared.
There is no question that it is difficult to keep up with the diurnal Manichean machinations of this administration, particularly within the context of our own quotidian details. Nevertheless, certain choices present themselves historically, i.e. the war authorization vote, the Patriot Act vote, judicial confirmations, etc. that are seminal and vital and imperative to get right the first time. Please call, write, and petition your Senators and Representatives to oppose, particularly at this time, any changes to the current FISA regulations. Much more scrutiny is necessary before we have a Constitution that is nothing more than a museum artifact.