Senate Debates Cheney FISA Bill: Eight Urgent Reasons to Defeat It

[Elliot D. Cohen]

Submitted by BuzzFlash on Mon, 12/17/2007 - 10:15am.

A BUZZFLASH GUEST CONTRIBUTION

by Elliot D. Cohen

Senate Majority Leader Harry Reid has yielded to the Bush Administration and telecom lobbyists by sending the Senate Intelligence Committee's version of the FISA Amendments Act of 2007 (S.2248) to the Senate floor. This bill, a brainchild of Dick Cheney that insulates telecommunications companies from both retroactive (past) and prospective (future) civil and criminal liability for assisting the government in illegally spying on the American people, is about to mark the end of democracy in America.

A few versions of the bill had been sent up from committee to Reid. One version drafted by the Senate Judiciary Committee does not grant retroactive immunity. But the Senate Intelligence Committee (SIC) version of the bill gives the Bush and Cheney exactly what they want -- legal protection to conduct surveillance operations in secrecy in virtually any way they see fit, and full immunity to the telecoms for assisting. It would now take 60 Senate votes to amend this bill to protect the Constitutional rights of American citizens.

Not only does this bill insulate the telecoms from retroactive civil and criminal liability dating back to September 11, 2001; but it also insulates these companies from such liability at least until 2013 when the law sunsets. There are presently about 40 civil suits now pending that would be wiped out if this bill, in its present form, becomes law.

SIC S.2248 also fails to provide adequate judicial oversight. Instead, the bill requires the Attorney General or Director of National Intelligence to certify to a FISA Court that procedures are in place to "minimize" the extent to which American citizens are spied on without a court warrant. And there is also a "limitation" according to which this certification does not have to identify the specific facilities, places, premises, or property at which the acquisition authorized will be directed or conducted. Nor is there any requirement to divulge the identities of those persons being targeted.

The primary oversight activity granted to the FISA Courts by SIC S.2248 is in reviewing the minimization procedures adopted by the government to determine if they meet the minimization standards adopted in 1978. Unfortunately, there is no real judicial oversight to determine if the government is truly applying standards consistent with the 1978 provisions.

SIC S.2248 accordingly gives the federal government a virtual blank check in conducting its surveillance activities. In exchange the government is also required to attest that it is following the Fourth Amendment, avow that it has a "significant purpose" in gathering foreign intelligence, and disavow that it has any similar "intent" to spy on Americans. This is not what the Founding Fathers intended when they established a real system of checks and balances to guard against abuses of power. Under the terms of this bill, government can easily conduct massive, indiscriminate spying operations without its victims -- the American people -- having any legal recourse.

That the Bush Administration is presently conducting such wholesale spying operations is at this juncture past reasonable doubt. Presently, there is credible evidence that, installed deep inside major national hubs of AT&T, is surveillance equipment that copies and routes all Internet and telephone traffic to a National Security Agency (NSA) computer network where the content of these messages is examined using undisclosed, top secret search criteria. This massive surveillance program has been the basis of a class action suit filed by the Electronic Frontier Foundation against AT&T on behalf of American citizens. This suit as well as all the others now pending against AT&T and other telecoms (notably Verizon) will be wiped out with the passage of SIC S.2248.

The dangers this bill poses to the survival of democracy in America are far-reaching and fatal. Here are some of them:

1. SIC S.2248 would permit the notorious Total Information Awareness (TIA) project started by Bush and Cheney in 2003 to go forth. This project, renamed the "Terrorist Information Awareness" aspired to create a colossal network of integrated technologies for intercepting, storing, searching, monitoring, reading, and analyzing all private, computerized records of 300 million Americans. Amid public outcry, this project was presumed to have been de-funded by Congress but instead the project, including several of its core technologies, was transferred from the Department of Defense to the NSA. These core computer technologies now appear to have been deployed by the NSA in spying on the telephone and e-mail conversations and Internet activities of millions of Americans. If SIC S.2248 becomes law, this massive, illegal spying operation is likely to continue and escalate behind an impenetrable veil of secrecy.

2. Operating behind this veil of secrecy without judicial inspection, search criteria of TIA technologies can easily be programmed to intercept, read, and collect the electronic messages of political opponents in order to gain an unfair campaign advantage in the upcoming presidential election. Especially at this juncture in time, with the presidential election looming close on the horizon, there is dire need for a FISA law that permits legal scrutiny of the NSA surveillance program.

3. That the Bush Administration is motivated to engage in such egregious violations of privacy is beyond speculation. In 2005, it was revealed that it has kept extensive computerized files on more than 10,000 Americans it considered political enemies. These files have included intimate personal details of individuals who may have disagreed with Bush/Cheney such as members of Congress; local, state and federal officials; journalists; and even ordinary citizens. The purpose of this "enemies list" has been for use by senior level administration officials in waging campaigns to discredit these perceived adversaries. It cannot therefore be dismissed that it is presently utilizing the TIA technologies it now has at its disposal to gather incriminating or damaging information on its Democratic opponents in Congress and elsewhere to intimidate them into walking lockstep with the administration. This could potentially include anything from taking impeachment off the table to passing dangerous legislation -- including SIC S.2248 itself.

4. In this election year, with TIA at its disposal, the Bush Administration can do more than intercept and read its political opponents' e-mail and phone messages in order to gain an unfair campaign advantage. Electronic voting itself requires transmission of the votes cast by American citizens to a central tabulation headquarters through the phone lines. Without the necessary judicial intervention, the TIA system can also be deployed to block votes, reconfigure them, and thereby change the outcome of election results. Presidential candidates, particularly Democratic ones, therefore have self-interested reasons to try to stop SIC S.2248 from becoming law.

5. Given the Bush Administration's penchant for targeting the media, immunizing the telecoms from legal accountability can also make it possible to set TIA search criteria to read journalists' electronic correspondence. Indeed, even bare knowledge that all electronic messages are being tapped can have the effect of chilling the First Amendment right to a free press by making sources more reticent to freely disclose information, especially via international phone and e-mail communications. It can also make journalists themselves less inclined to cover an anti-Bush Administration story when they are aware that their communications are being monitored.

6. But ordinary citizens also have reason for concern. Natural language parsing technologies of the kind used to search electronic messages are notoriously fallible and subject to false positives. This means that all Americans, even those who believe they have nothing to hide, are also at risk.

7. If SIC S.2248 becomes law, all citizens will be suspects in a massive dragnet operation without any legal recourse of their own. Still, the bill opens up the possibility for discriminatory enforcement of the law. Persons of Middle Eastern descent, for example, could become priority targets of surveillance. Given the current administration's suspension of habeas corpus, its policy of "rendition," and its willingness to use torture, such selective targeting can have egregious and far reaching consequences for targeted groups. A case in point, which illustrates the dangers of selective targeting is that of Maher Arar, a Canadian citizen of Middle Eastern descent, who in September 2002 was stopped without probable cause at JFK airport on his way back to Canada and "rendered" to Syria, to be tortured for nearly a year. Since according to SIC S.2248, civil and criminal suits are off the table, such discriminatory targeting could be carried out with the assistance of the telecom companies in violation of the 14th Amendment guarantee of equal protection under the laws. According to SIC S.2248, the victim of such a violation could have no legal cause of action against the telecom company for its acquiescence in such a travesty of justice. This is as absurd as it is dangerous in a society that claims to be a democracy governed by the rule of law. It is in principle no different than the case of the Jews in Nazi Germany who under Hitler were tracked by IBM using punch card computer technology. Under Hitler's "law," IBM was also granted legal immunity for its egregious violations.

8. If SIC S.2248 becomes law, the Internet will be subject to policing by government acting secretly through the telecom companies. This situation opens up a Pandora's Box for government censorship of information it considers "subversive," which is a sizable part of the Internet. In recent years, the telecom companies have gained considerable legal leverage over the phone lines and cables that carry Internet exchanges. In this climate of growing corporate control over these pipes, SIC S.2248 would add still further fuel to the fire that threatens to burn away net neutrality. If the government acting through the telecoms can police the Internet without Judicial scrutiny, then it becomes abundantly easier for it to censor and manipulate its content in the name of "national security" while hiding behind a grant of legal immunity. Given the Bush Administration's penchant for stretching legal boundaries beyond their just limits, a virtual blank check to police Internet traffic is also a recipe for controlling what gets pumped into it. This is also a recipe for fascism.

And there is good reason to believe that Cheney and company would favor a police state to a democracy. It is well documented that his political objective has and continues to be that of making America the world's sole superpower through the buildup and use of military force. This goal is not attainable unless central government can anticipate and subdue its opponents both at home and abroad.

Most Americans would cringe at waging a bloody war in Iraq for purposes of acquiring greater control over its oil fields. Yet, justifying a preemptive war by connecting Iraq to WMDs or September 11 to Saddam Hussein is more effective than the truth. Enlisting support from the mainstream media and telecom corporations in promulgating propaganda and spying on Americans, in exchange for lucrative military contracts, corporate mergers, relaxed media ownership rules, and other government perks, works better than respecting First and Fourth Amendment rights.

Democracy breeds alternative social and political perspectives. Dictatorship breeds single-mindedness and stamps out opposition to the status quo. The latter is the environment that Cheney and Bush seek in attempting to attain their narrow ideological mission. SIC S.2248 is, for them, a perceived means to this end. The end of democracy is part of the price they are willing to pay.

In conceding to the Bush Administration, Harry Reid has become an accomplice to the demise of democracy. Anyone other Senator who votes in favor of SIC S.2248 does the same.

Presently, the House version of this bill, the Restore Act (HR 3773), does not grant retroactive immunity to the telecoms. It is therefore better than SIC S.2248. If the latter passes in the Senate, the survival of democracy in America may well rest with how these two bills are reconciled.


A BUZZFLASH GUEST CONTRIBUTION

Elliot D. Cohen, Ph.D.<www.elliotdcohen.com> is a media ethicist and critic. His most recent book is "The Last Days of Democracy: How Big Media and Power-Hungry Government Are Turning America Into a Dictatorship." He is a first-prize winner of the 2007 Project Censored Award.

[txaslftist]

1. Greenwald has a piece on Salon about this, from which I take:

Glenn Greenwald
Sunday December 16, 2007 04:44 EST
The Lawless Surveillance State
(updated below)

The cooperation between the various military/intelligence branches of the Federal Government -- particularly the Pentagon and the NSA -- and the private telecommunications corporations is extraordinary and endless. They really are, in every respect, virtually indistinguishable. The Federal Government has its hands dug deeply into the entire ostensibly "private" telecommunications infrastructure and, in return, the nation's telecoms are recipients of enormous amounts of revenues by virtue of turning themselves into branches of the Federal Government.

There simply is no separation between these corporations and the military and intelligence agencies of the Federal Government. They meet and plan and agree so frequently, and at such high levels, that they practically form a consortium.

There are literally no limits on the ways in which the Federal Government, working hand-in-hand with the largest private corporations, spies on American citizens and maintains files on what we do, where we go, with whom we communicate. These secret, unchecked spying programs reach into virtually every realm.

...

No speculation or inferences or rhetorical flourishes are necessary to reach these conclusions. Just go read what has been disclosed about what our government is doing in the dark, with no oversight and in violation of our laws -- and the ways in which our political and media class work feverishly to defend and enable it all -- and there really is no other conclusion which a rational person can reach. In a country that lived under minimal notions of the rule of law, the very idea of having Congress pass a special law to immunize retroactively an entire industry which illegally spied on us, on our own soil, for years would be inconceivable. Yet even in the face of these latest revelations of just how broad and brazen this lawbreaking is, that is, in the absence of unexpected developments, quite likely what is about to happen.
...
UPDATE: Chris Dodd is leaving the campaign trail in Iowa to travel to Washington tomorrow to lead an old-fashioned filibuster on the Senate floor against the telecom amnesty bill, an action necessitated by Harry Reid's reprehensible refusal to honor his "hold" and also by Reid's conniving to maximize the prospects that the Senate bill will contain both amnesty and vast new warrantless surveillance powers. Two other Senators at least -- Feingold and Kennedy -- have committed to being on the floor to enable Dodd to take periodic breaks by asking questions. Despite issuing prior statements claiming they would support Dodd's filibuster, none of the other presidential candidates in the Senate -- Clinton, Obama or Biden -- have indicated that they will do so tomorrow.

Dodd is interested in obtaining as much relevant material as he can to read during his filibuster. His office will read comments on various blogs and select numerous comments for Dodd to read. If you're interested in submitting a comment supporting Dodd's filibuster and expressing opposition to the rule-of-law-destroying amnesty bill which Dodd is attempting to derail, you can leave your comment here (at Salon) , on this FDL post, and Dodd's office will review them and choose many for Dodd to read on the Senate floor tomorrow.

-- Glenn Greenwald

[ninkasi]

2. Great article, thanks

K&R

[ooglymoogly]

3. and on to the front page....kr