Senate Votes to Extend Sweeping Bush Era Surveillance Powers
Even modest attempts to reign in domestic spying law fail as Senators
defend sweeping powers for NSA
Published on Friday, December 28, 2012 by Common Dreams
http://www.commondreams.org/headline/2012/12/28
Senate Reauthorizes Warrantless Wiretapping
After Defeating Moderate Reforms, Senate Extends Unchecked
Surveillance Powers for Five Years
ACLU
WASHINGTON - December 28
http://www.commondreams.org/newswire/2012/12/28-0
White House, Congress extend police-state FISA law
29 December 2012
http://www.wsws.org/en/articles/2012/12/29/pers-d29.html
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http://www.informationclearinghouse.info/article33460.htm
GOP and Feinstein join to fulfill Obama's demand for renewed
warrantless eavesdropping
The California Democrat's disgusting rhetoric recalls the worst of
Dick Cheney while advancing Obama's agenda
By Glenn Greenwald
December 28, 2012 " The Guardian" -- To this day, many people
identify mid-2008 as the time they realized what type of politician
Barack Obama actually is. Six months before, when seeking the
Democratic nomination, then-Sen. Obama unambiguously vowed that he
would filibuster "any bill" that retroactively immunized the telecom
industry for having participated in the illegal Bush NSA warrantless
eavesdropping program.
But in July 2008, once he had secured the nomination, a bill came
before the Senate that did exactly that - the FISA Amendments Act of
2008 - and Obama not only failed to filibuster as promised, but far
worse, he voted against the filibuster brought by other Senators, and
then voted in favor of enacting the bill itself. That blatant,
unblinking violation of his own clear promise - actively supporting a
bill he had sworn months earlier he would block from a vote - caused
a serious rift even in the middle of an election year between Obama
and his own supporters.
Critically, the FISA Amendments Act of 2008 did much more than shield
lawbreaking telecoms from all forms of legal accountability. Jointly
written by Dick Cheney and then-Senate Intelligence Committee Chair
Jay Rockefeller, it also legalized vast new, sweeping and almost
certainly unconstitutional forms of warrantless government
eavesdropping.
In doing so, the new 2008 law gutted the 30-year-old FISA statute
that had been enacted to prevent the decades of severe spying abuses
discovered by the mid-1970s Church Committee: by simply barring the
government from eavesdropping on the communications of Americans
without first obtaining a warrant from a court. Worst of all, the
2008 law legalized most of what Democrats had spent years pretending
was such a scandal: the NSA warrantless eavesdropping program
secretly implemented by George Bush after the 9/11 attack. In other
words, the warrantless eavesdropping "scandal" that led to a Pulitzer
Prize for the New York Times reporters who revealed it ended not with
investigations or prosecutions for those who illegally spied on
Americans, but with the Congressional GOP joining with key Democrats
(including Obama) to legalize most of what Bush and Cheney had done.
Ever since, the Obama DOJ has invoked secrecy and standing doctrines
to prevent any courts from ruling on whether the warrantless
eavesdropping powers granted by the 2008 law violate the Constitution.
The 2008 FISA law provided that it would expire in four years unless
renewed. Yesterday, the Senate debated its renewal. Several Senators
- Democrats Jeff Merkley and Ron Wyden of Oregon along with Kentucky
GOP Senator Rand Paul - each attempted to attach amendments to the
law simply to provide some modest amounts of transparency and
oversight to ensure that the government's warrantless eavesdropping
powers were constrained and checked from abuse.
Just consider how modest these amendments were. Along with Democratic
Sen. Mark Udall of Colorado, Sen. Wyden has spent two years warning
Americans that the government's eavesdropping powers are being
interpreted (by secret court decisions and the Executive Branch) far
more broadly than they would ever suspect, and that, as a result,
these eavesdropping powers are being applied far more invasively and
extensively than is commonly understood.
As a result, Wyden yesterday had two amendments: one that would
simply require the NSA to give a general estimate of how many
Americans are having their communications intercepted under this law
(information the NSA has steadfastly refused to provide), and another
which would state that the NSA is barred from eavesdropping on
Americans on US soil without a warrant. Merkley's amendment would
compel the public release of secret judicial rulings from the FISA
court which purport to interpret the scope of the eavesdropping law
on the ground that "secret law is inconsistent with democratic
governance"; the Obama administration has refused to release a single
such opinion even though the court, "on at least one occasion", found
that the government was violating the Fourth Amendment in how it was
using the law to eavesdrop on Americans.
But the Obama White House opposed all amendments, demanding a "clean"
renewal of the law without any oversight or transparency reforms.
Earlier this month, the GOP-led House complied by passing a
reform-free version of the law's renewal, and sent the bill Obama
wanted to the Senate, where it was debated yesterday afternoon.
The Democratic Chair of the Senate Intelligence Committee, Dianne
Feinstein, took the lead in attacking Wyden, Merkley, Udall and Paul
with the most foul Cheneyite accusations, and demanded renewal of the
FISA law without any reforms. And then predictably, in virtually
identical 37-54 votes, Feinstein and her conservative-Democratic
comrades joined with virtually the entire GOP caucus (except for
three Senators: Paul, Mike Lee and Dean Heller) to reject each one of
the proposed amendments and thus give Obama exactly what he demanded:
reform-free renewal of the law (while a few Democratic Senators have
displayed genuine, sustained commitment to these issues, most
Democrats who voted against FISA renewal yesterday did so
symbolically and half-heartedly, knowing and not caring that they
would lose as evidenced by the lack of an attempted filibuster).
In other words, Obama successfully relied on Senate Republicans (the
ones his supporters depict as the Root of All Evil) along with a
dozen of the most militaristic Democrats to ensure that he can
continue to eavesdrop on Americans without any warrants, transparency
or real oversight. That's the standard coalition that has spent the
last four years extending Bush/Cheney theories, eroding core
liberties and entrenching endless militarism: Obama + the GOP caucus
+ Feinstein-type Democrats. As Michelle Richardson, the ACLU's
legislative counsel, put it to the Huffington Post: "I bet [Bush] is
laughing his ass off."
But what's most remarkable here is not so much what happened but how
it happened. When Obama voted in 2008 to massively increase the
government's warrantless eavesdropping powers, I so vividly recall
his supporters insisting that he was only doing this because he
wanted to win the election, and then would get into power and fix
these abuses by reversing them. Yes, there were actually large
numbers of people who believed this. And they were encouraged to
believe this by Obama himself, who, in explaining his 2008 vote, said
things like this:
"I know that the FISA bill that passed the House is far from perfect.
I wouldn't have drafted the legislation like this, and it does not
resolve all of the concerns that we have about President Bush's abuse
of executive power. . . .
"I do so [vote for the FISA bill] with the firm intention - once I'm
sworn in as president - to have my Attorney General conduct a
comprehensive review of all our surveillance programs, and to make
further recommendations on any steps needed to preserve civil
liberties and to prevent executive branch abuse in the future."
Needless to say, none of that ever happened. Now, the warrantless
eavesdropping bill that Obama insisted was plagued by numerous
imperfections is one that he is demanding be renewed without a single
change. Last week, Marcy Wheeler documented the huge gap between (a)
what Obama vowed he would do when he voted for this law in 2008
versus (b) what he has actually done in power (they're opposites).
Indeed, when it came time last year to vote on renewal of the Patriot
Act - remember how Democrats used to pretend during the Bush years to
find the Patriot Act so alarming? - the Obama administration also
demanded its renewal without a single reform. When a handful of
Senators led by Rand Paul nonetheless proposed modest amendments to
eliminate some of the documented abuses of the Patriot Act,
Democratic majority leader Harry Reid did his best Dick Cheney
impression by accusing these disobedient lawmakers of risking a
Terrorist attack by delaying renewal:
"When the clock strikes midnight tomorrow, we will be giving
terrorists the opportunity to plot against our country undetected.
The senator from Kentucky is threatening to take away the best tools
we have for stopping them.
"We all remember the tragic Fort Hood shootings less than two years
ago. Radicalized American terrorists bought guns and used them to
kill 13 civilians [by "civilians", Reid means: members of the US
military]. It is hard to imagine why the senator would want to hold
up the Patriot Act for a misguided amendment that would make American
less safe."
In other words: if you even try to debate the Patriot Act or add any
amendments to it, then you are helping the Terrorists: classic Dick
Cheney. (Democratic Sen. Udall defended Paul from Reid's disgusting
attack: "This is not a Patriot Act. Patriots stand up for the
Constitution. Patriots stand up for freedom and liberty that's
embodied in the Constitution. And I think true patriots, when they're
public servants, public servants stand up and do what's right, even
if it's unpopular").
Yesterday, I watched as Dianne Feinstein went well beyond Harry
Reid's disgusting Cheneyite display. Feinstein is one of the Senate's
richest plutocrats, whose husband, Richard Blum, has coincidentally
been quite enriched by military and other government contracts during
her Senate career. During this time, Feinstein has acted as the most
faithful servant in the Senate of the National Security State's
unchecked, authoritarian power.
Yesterday, Feinstein stood up on the Senate floor and began by
heaping praise on her GOP comrade, Sen. Saxby Chambliss of Georgia,
for leading his caucus to join her in renewing the FISA act without
any reforms. She then unleashed a vile attack on her Democratic
colleagues - Wyden, Merkley, and Udall, along with Paul - in which
she repeatedly accused them of trying to make the nation vulnerable
to a Terrorist attack.
Feinstein insisted that one could support their amendments only if
"you believe that no one is going to attack us". She warned that
their amendments would cause "another 9/11". She rambled about
Najibullah Zazi and his attempt to detonate a bomb on the New York
City subway: as though a warrant requirement, let alone disclosure
requirements for the eavesdropping program, would have prevented his
detection. Having learned so well from Rudy Giuliani (and Harry
Reid), she basically just screamed "Terrorist!" and "9/11" over and
over until her time ran out, and then proudly sat down as though she
had mounted rational arguments against the transparency and oversight
amendments advocated by Wyden, Merkley, Udall and Paul.
Even more notably, Feinstein repeatedly argued that requiring even
basic disclosure about the eavesdropping program - such as telling
Americans how many of them are targeted by it - would, as she put it,
"destroy the program". But if "the program" is being conducted
properly and lawfully, why would that kind of transparency kill the
program? As the ACLU's Richardson noted: "That Sen. Feinstein says
public oversight will lead to the end of the program says a lot about
the info that's being hidden." In response to her warnings that basic
oversight and transparency would destroy the program, Mother Jones'
Adam Serwer similarly asked: "Why, if it's all on the up and up?"
All of this was accomplished with the core Bush/Cheney tactic used
over and over: they purposely waited until days before the law is set
to expire to vote on its renewal, then told anyone who wants reforms
that there is no time to consider them, and that anyone who attempted
debate would cause the law to expire and risk a Terrorist attack.
Over and over yesterday, Feinstein stressed that only "four days
remained" before the law expires and that any attempts even to debate
the law, let alone amend it, would leave the nation vulnerable.
It's hard to put into words just how extreme was Feinstein's day-long
fear-mongering tirade. "I've never seen a Congressional member argue
so strongly against Executive Branch oversight as Sen. Feinstein did
today re the FISA law," said Micah Zenko of the Council on Foreign
Relations. Referring to Feinstein's alternating denials and
justifications for warrantless eavesdropping on Americans, the ACLU's
Jameel Jaffer observed: "This FISA debate reminds of the torture
debate circa 2004: We don't torture! And anyway, we have to torture,
we don't have any choice."
Jaffer added that Feinstein's strident denials that secret
warrantless eavesdropping poses any dangers "almost makes you
nostalgic for Ashcroft's 'phantoms of lost liberty' speech" -
referring to the infamous 2001 decree from Bush's Attorney General:
"To those who scare peace-loving people with phantoms of lost
liberty, my message is this: Your tactics only aid terrorists for
they erode our unity and diminish our resolve. They give ammunition
to America's enemies and pause to America's friends."
That is exactly the foul message which Dianne Feinstein, doing the
bidding of the Obama White House, spewed at her liberal Senate
colleagues (and a tiny handful of Republicans) for the crime of
wanting to bring some marginal transparency and oversight to the
warrantless eavesdropping powers with which Obama vested himself when
voting in 2008 for that FISA law. As it turns out, Yale Law Professor
Jack Balkin had it exactly right in mid-2008 when explaining - in the
face of lots of progressive confusion and even anger - why Obama
decided to support a FISA bill that vested the executive with massive
unchecked eavesdroppoing power: namely, Obama "plans to be the
executive", so "from Obama's perspective, what's not to like?"
Just four or five years ago, objections to warrantless eavesdropping
were a prime grievance of Democrats against Bush. The controversies
that arose from it were protracted, intense, and often ugly.
Progressives loved to depict themselves as stalwartly opposing
right-wing radicalism in defense of Our Values and the Constitution.
Fast forward to 2012 and all of that, literally, has changed. Now
it's a Democratic President demanding reform-free renewal of his
warrantless eavesdropping powers. He joins with the Republican Party
to codify them. A beloved Democratic Senator from a solidly blue
state leads the fear-mongering campaign and Terrorist-enabling slurs
against anyone who opposes it. And it now all happens with virtually
no media attention or controversy because the two parties collaborate
so harmoniously to make it happen. And thus does a core guarantee of
the founding - the search warrant requirement of the Fourth Amendment
- blissfully disappear into nothingness.
Here we find yet again a defining attribute of the Obama legacy: the
transformation of what was until recently a symbol of right-wing
radicalism - warrantless eavesdropping - into meekly accepted
bipartisan consensus. But it's not just the policies that are so
transformed but the mentality and rhetoric that accompanies them:
anyone who stands in the way of the US Government's demands for
unaccountable, secret power is helping the Terrorists. "The
administration has decided the program should be classified", decreed
Feinstein, and that is that.
In 2005, the Bush White House invoked the "very bad guy" defense to
assure us that we need not worry about the administration's secret
warrantless eavesdropping program; as a Bush White House spokesman
put it:
"This is a limited program. This is not about monitoring phone calls
designed to arrange Little League practice or what to bring to a
potluck dinner. These are designed to monitor calls from very bad
people to very bad people who have a history of blowing up commuter
trains, weddings and churches."
In 1968, Nixon Attorney General John Mitchell similarly told the
public in the face of rising concerns over government eavesdropping
powers that "any citizen of this United States who is not involved in
some illegal activity has nothing to fear whatsoever." That is the
noble tradition which the Obama White House, Dianne Feinstein and
their GOP partners are continuing now.
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