What the Senate Doesn’t Know About FISA
Nancy Pelosi once said that we had to pass Obamacare to see what’s in it. Last week, Congress said we shouldn’t ask what’s in the federal surveillance law even after we’ve passed it.
That’s the most charitable way to interpret the Senate’s votes reauthorizing expiring provisions of the Foreign Intelligence Surveillance Act (FISA) without any major changes or new checks and balances. The FISA amendments package of 2008 allows the kind of general warrants the Fourth Amendment was intended to prevent, giving the government a blank check for snooping on Americans.
It’s not so much that senators voted by lopsided margins to continue Bush-era warrantless wiretapping nearly five years into the age of hope and change (with the Obama administration’s blessing, of course). More surprising is their lack of interest in how many people are being spied on and how likely irrelevant data belonging to innocent citizens is to be ensnared in terrorism investigations.
FISA courts operate in secret, which is to be expected. What is not to be expected is that the elected branches of the federal government will conduct a debate about the proper scope of the law without knowing how the law is actually interpreted in practice.
We might as well have a debate about the Constitution with a secret Supreme Court. (Well, that probably wouldn’t be all that different from the current state of affairs.)
Sen. Jeff Merkley asked that we be given some window into what the important rulings and precedents of the secret court might be, with the understanding that nothing endangering national security would be declassified. If we are going to discuss these issues, it would be awfully sporting to know what we are talking about.
Nah, the Senate decided. Merkley’s amendment was defeated by a vote of 54 to 37. Who needs to know these things anyway? That’s why the government hires national-security professionals, who will always act in our interests.
So Sen. Ron Wyden, a fellow Democrat from Oregon, offered a different amendment. He just wanted some general reporting on the privacy impact of the law, some more disclosure. Transparency, the president tells us, is a good thing, right?
“I think we ought to know, generally, how many Americans are being swept up under the legislation,” Wyden said on the Senate floor. Not explicit tips on ongoing terror investigations. Just making sure the surveillance is focused on, you know, terror investigations.
“One of the biggest misconceptions about NSA is that we are unlawfully listening in on, or reading e-mails of, U.S. citizens,” the National Security Agency told CNN in a statement. “This is simply not the case. NSA is unwavering in its respect for U.S. laws and Americans’ civil liberties.”
No one should think the targets are U.S. persons,” said Sen. Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee. “Thirteen members of the intelligence committee who have voted on this do not believe this is a problem.”
Okay. Well, then that’s what some small measure of transparency will show us, right? Or do we just have to take the NSA and the Intelligence Committee’s word for it? (Wyden incidentally serves on Intelligence and he still has a wee bit of a problem with these assurances.)
Turns out that the Senate didn’t want to know. Wyden’s amendment was defeated by a vote of 52 to 43.
By now, you might be able to sense a pattern developing here. So you would probably not be surprised to learn that only a dozen senators supported Rand Paul’s proposal that emails and text messages be subject to the same Fourth Amendment protections as telephone calls.
As the Mafia dons caught by surveillance have been known to say, “Fuggetaboutit.”
The House had already decided not to ask any questions back in September, so the Senate’s 72 to 23 reauthorization vote is the end of the story for now.
FISA, this is an important piece of legislation as imperfect as it is, it is necessary to protect us from the evil in this world,” said Senate Democratic Leader Harry Reid. “Christmas is not more important than this legislation.”
Or as Dianne Feinstein said of the privacy amendments, “I guess you believe no one is going to attack us, then it’s fine to do this.”
I guess if you believe government powers are never abused, or that Democrats will protect our civil liberties even when a president of their own party is in power, it’s fine not to do “this.”
Just reauthorize the sunsetting provisions so we can all find out what’s in them.
W. James Antle III is editor of the Daily Caller News Foundation and a contributing editor to The American Conservative. Follow him on Twitter.