Why Do They Need to Spy on Americans Overseas without a Warrant?
Mr. emptywheel has started on the pancakes, finally, but I’ve got time for one more post.
According to public reports, Bush has threatened to veto SSCI’s FISA bill as written. That’s because of an amendment submitted by Ron Wyden which requires the Administration to obtain a FISA warrant if they want to wiretap an American overseas. The additional views in the SSCI report on the bill reveals some of what we can expect as we go forward with this debate.
In his description of the amendment, Wyden (writing with Russ Feingold) makes it clear that the Attorney General should not be able to determine, by himself, that someone is an agent of a foreign power.
One amendment, which we offered along with Senator Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court – and not just the Attorney General – must determine that there is probable cause that the American is an agent of a foreign power. Americans’ rights should not diminish when they cross the border, nor should the extent of those rights be subject to the whim of the executive branch without the checks and balances provided by the court.
Sheldon Whitehouse, in his longer description of the amendment, also emphasizes judicial review of who is an agent of a foreign power.
I cosponsored and strongly supported an amendment, proposed by Senator Wyden, and approved by the Committee, that requires the Government to obtain a traditional warrant from the Foreign Intelligence Surveillance Court (FISC) if the Government wants to collect, from a source within the United States, against an American overseas. The amendment also requires that, in order to collect surveillance overseas on a U.S. citizen traveling or living overseas, the Government obtain a determination from the FISC that the targeted U.S. citizen is a foreign power or the agent of a foreign power. Furthermore, the FISC must issue an ex parte order approving this surveillance. These changes are critical to ensuring that the new warrantless surveillance authority enacted under the Protect America Act does not allow the Government to intrude inappropriately upon the privacy of U.S. citizens. Nonetheless, the Administration has already signaled that this amendment may create certain challenges that need to be resolved. If the Administration intends to propose an alternative, it must preserve the Court’s role in determining whether there is probable cause to believe the U.S. citizen is a foreign power or an agent of a foreign power. U.S. citizens do not, and should not be expected to, leave their privacy rights behind every time they leave the United States.
But that judicial review is apparently a problem for Republicans (or at least Bond, Hatch, Chambliss, and Warner), who think we should just trust in the good intentions of the intelligence community and the Attorney General.
And EW, reading Laura’s piece with Starks take on things, I came across this little gem:
If I understand this correctly, it sure seems like any and all info gathered on US persons during the eavesdropping, even eavesdropping that the FISC determines is not targeted at folks overseas, is usable in any way, shape or form.
Such as IRS â€tax evasion†prosecution or â€laundering†money.
And it also seems to say if the US collects this info â€domesticallyâ€, that is Ok.
Talk about the mother of all â€drift-netsâ€.
A citizen’s rights vis a vis her government are not dependent on her travel plans. The government’s claims of loyalty are not limited in time or space; neither are the obligations and the restraint it owes its citizens.
The immunity game hides who’s playing; it also hides how they play. The days when a lone gunman tapped an individual phone line are long gone. The government now copies entire data streams, filtering it later for â€targets of interestâ€, which change over time. Unlike governments in Canada, Europe or Australia, there are virtually no limits on what can be done with that information once collected.
The stored data files are like a vault full of cash with the doors sometimes left open: even the most committed guards will falter; unscrupulous ones, including outsourced service providers, will ransack at will.
The immunity game hides something else: it is part of a gambit to hide and institutionalize that abuse. Apart from being harmful, that can be enormously profitable.
Wouldn’t it be a better world if somehow EW could virtually hand out pancakes to all her readers? The pancakes might help absorb the bile that rises up when you read how we should just trust them to do the right thing.
thanks for waiting!
why, after 2 centuries are we suddenly trashing the constitution to model ourselves after nazi germany? Who could gain from this? Terrorism is a hilarious excuse, but hardly valid. Geo. Washington was a terrorist. Ben Franklin, John Adams, Tom Jefferson. They were also really different people. One wanted real democracy, one approved of a compromise, one wanted a new monarchy. One had fun pretending he was an ordinary â€personâ€
today we need to investigate people because they are a danger to us. really? because they live in an oil producing country? We could have spent 500 billion on renewable energy, creating an infrastructure that would not need oil except as a lubricant. We can produce quite enough of that on our own. We could have repowered this country with solar, hydro, bio, wind, and dare I say it, conservation. We could have been free. We could have been independent. It must not be to the liking of most of those people in power today. It is still not taken seriously by our government.
So, for each of us that uses the energy today; Do you have a substitute for it? Our government has gone along with people that want you to purchase only their product. The government is owned by corrupt businesses that believe survival is their only mantra. No responsibility to anything else. Not to the people that make up the entity. So, the corporation has really become a person. But the people are not represented in any way.
Since we have come full circle and the experiment has failed, some change can be expected. We are more concerned about an illiterate ex saudi citizen than we are about anything that really matters. Imagine being so scared of a guy that got a couple dozen idiots to do a suicide job? It didn’t scare the navy in WWII when it happened many times every day for well over a year, until the end of a war that was shorter than the one we are now in.
Our priorities show much about our mental state. Change is the most difficult thing one can do. Since the priorities in this country are so varied, someone smart figured out how to scare enough of us into ignoring all of the freedoms we had never tried to understand before. Change has come. Would anyone argue that the targets of the wiretaps and intercepts are less than 90% americans? The began spying on Americans the day they came in to power. We know they have never acted on any intercept in a foreign land to prevent a terrorist attack. Far from it. They have provided intelligence and weapons to those they claim are our enemy.
It is hard to believe. That is what a group of people figured everyone would say. Now it is too late.
hope the pancakes are good, and thanks for the best insight into our government that I have seen
Hmm. How does all this jive with the recent news that the US is collecting–and retaining–information on US citizens traveling overseas, to include whom they visit, with whom they travel, even casually, and their reading habits?
With that info–which has apparently not been collected by intelligence agencies and is readily available on a number of government computer systems–leaving it all up to the intelligence services and the Attorney General is a demonstrably unsound principle. Look, generally, at the abuses which have been made of national security letters in the last few years as an example indicating that administrative determinations, cutting the courts out of the process entirely, are seriously flawed.
What bothers me, though, about all this is one thing: underlying this posturing over the degree of involvement of FISC is a decided avoidance of any talk of misuse of the intelligence services and the FBI for political purposes. FISC, over the years, has been a virtual rubber stamp for whatever the FBI or CIA has wanted, and FISA–even before the changes from PATRIOT Act onward–had plenty of exceptions for emergencies. Every agency dealing with FISC–for almost thirty years–knows what will fly with FISC and what won’t.
So, why the sudden desire on the part of the Bushies to do an end-run around the FISC? The key, of course, is their desire, well before 9/11, to nullify FISA and FISC, and the roots of that partly lie in their notions about the â€unitary executive,†but, there ought to be, given the composition of this White House from the beginning, serious suspicion that this White House has been using the intelligence services to spy on political opponents of all stripes. It was their modus operandi, from the outset, to use the power of government to institutionalize one-party rule. Why, then, would anyone still believe that this White House, given their record, would treat the intelligence services as off-limits for political corruption?
Healthy skepticism would suggest that the intelligence services would be the very first part of government the Bushies would try to corrupt for political purposes (and we have some evidence they were trying to do that five weeks after assuming office, and, then, there’s the Plame business).
One would think the Dems would have figured this out by now….
Data bases, like bureaucracies, feed on themselves, demanding ever more resources. Our government, for example, has no constraints on how long it keeps our data. And among the fads of IT development are facial recognition s/w and personality profiling. Prone to errors and abuse that are infrequently corrected, these programs are mushrooming; so are the data bases that feed them, from travel reading to travel plans to countless bits and pieces that formerly were never collected, collated and analyzed.
I wouldn’t trust Jack Bauer to use them effectively; why would I trust Dick Cheney or Karl Rove not to abuse them?
Framed slightly differently, this reads to me as if travelling outside the US will constitute grounds for suspicion of being a foreign agent.
Laozi 65: 民之難治，以其智多。â€People’s being hard to govern comes from their knowing too much.â€
The Repugs make most clear their disdain for â€democracy†and instead bow and genuflect to the dictatorship of the â€Imperial Presidencyâ€:
King George never had such good friends. And the American people, let them eat cake.