FISA Extension Gets a Bipartisan Pass


Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

It is always rare in Washington these days when a bipartisan majority passes any bill in the House of Representatives or the Senate.  However, while most of the media interest last week was fixed on the so-called “fiscal cliff” negotiations and the subsequent legislation that was passed and signed into law, maybe the media missed the more important legislation.  That missed legislation was a 5 year extension of the FISA amendments that was granted by the Senate in a bipartisan 72-23 vote last week.  “The Senate voted 72-23 last week to extend the FISA Amendments Act another five years, which President Obama signed Sunday. Unfortunately, the public discussion of George W. Bush’s warrantless wiretapping program may soon fade back into the shadows.”  ACLU

This is a continuation of the same Bush-era FISA bill that was alleged to spy on almost anyone’s electronic communication, all without warrants.  So, instead of sunshine being used to bring some accountability and transparency to this secret spying, for Five more years, American’s phone calls and text messages can be monitored almost at will by the government with little or no judicial restraint.  What is Congress and the Intelligence community hiding from the American people?

The only good news that I can see in the passage of this five-year extension is that a few Senators made significant attempts to amend the bill to provide for more disclosure and review of this secret process.  “Sen. Ron Wyden (D-OR), a long-time member of the Intelligence Committee, valiantly fought for a year- and-a-half for basic information about how this surveillance program affects Americans and put a hold on the bill until a debate and amendment process was scheduled. He finally got a vote to force disclosure of whether the National Security Agency is vacuuming up wholly domestic communications or searching through FISA taps for Americans, yet it failed by a vote of 42-52. Sen. Jeff Merkley (D-OR) also went to the mattress over the secret FISA court opinions that determine whether we have constitutional rights to privacy in foreign intelligence investigations. He put the Senate to a vote on whether the administration should be forced to release the court opinions, supply unclassified summaries of them, or explain why they should be kept secret. That one went down 37-54. Simply put, if the public were to find out what the government is doing with our information, or how many of us are affected, the program would be “destroyed,” according to Senate Intelligence Committee Chair Dianne Feinstein (D-CA).”  ACLU

Mother Jones hit the nail on the head when it described what happened when the Senate voted to extend the FISA amendments.  “As the Senate debated the renewal of the government’s warrantless wiretapping powers on Thursday, Republicans who have accused President Barack Obama of covering up his involvement in the death of an American ambassador urged that his administration be given sweeping spying powers. Democrats who accused George W. Bush of shredding the Constitution with warrantless wiretapping four years ago sung a different tune this week, with the administration itself quietly urging passage of the surveillance bill with no changes, and Senator Dianne Feinstein (D-Calif.) accusing her Democratic colleagues of not understanding the threat of terrorism.”  Mother Jones

Does it amaze anyone else that the only thing that the Hatfields and McCoys of the Senate can get together on with a 72-23 margin is a bill that most of them don’t understand and which allows unfettered spying on ordinary Americans?  Does Sen. Feinstein actually think that Americans don’t realize that we are still under the threat of terrorism?  Why can these Senators come to a bipartisan result on measures that allow Uncle Sam to listen in on anyone’s communications, but they cannot agree with each other when it comes to the universal non-partisan issue of global climate change or necessary and reasonable gun control measures?

Both the ACLU article and the Mother Jones article linked above highlight that fact that common sense amendments to provide more disclosure on what the government is doing with our communications that were made by a few Senators with some support is evidence that we are getting closer to the day when the Senate will draw a line in the sand and require protections for citizens in their communications. The vote total for the vote on the extension bill actually included 3 Republicans voting against the extensions.  I hope Democratic Senator Schumer would explain his vote along with Senator Levin who also voted in favor of extending this warrantless wiretapping.  At some point these Senators and other Democratic Senators need to actually represent the people they claim they are protecting.  

While I am glad that some of the amendments proposed to the bill garnered 30 or 40 votes, I am not as optimistic as the ACLU in their hopes for an end to these draconian spying measures.  I guess I should be happy that some Senators have begun to question the Intelligence Community and the Obama Administration on these Bush-era FISA amendments, but I will hold my applause until the final act.  What do you think the Senate should do about the proposed amendments?  Can we be protected from terrorists without losing our rights?  I don’t know if we will ever find out!  I hope I am wrong.

56 thoughts on “FISA Extension Gets a Bipartisan Pass”

  1. nick, Why did the republicans oppose Susan Rice? She would have been Secretary of State not Kerry. Glen Greenwald supports Hagel.

  2. If you choose to remember, it was a blustering and bumbling Brennan that gave the press briefing right after the bin Laden assasination. He said things like there was gunfire from bin Laden and that he was hiding behind women. It was Goebbels like. I can read people and this guy is a weasel to the fifth degree. White/male weasels who like to exclude women is the hallmark of the Obama administration.

  3. The Magician’s Con: Renewing FISA and the NDAA Under Cover of the Fiscal Cliff Debates

    By John W. Whitehead
    January 07, 2013

    “If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.”—Supreme Court Justice Louis Brandeis

    What characterizes American government today is not so much dysfunctional politics as it is ruthlessly contrived governance carried out behind the entertaining, distracting and disingenuous curtain of political theater. And what political theater it is, diabolically Shakespearean at times, full of sound and fury, yet in the end, signifying nothing.

    Played out on the national stage and eagerly broadcast to a captive audience by media sponsors, this farcical exercise in political theater can, at times, seem riveting, life-changing and suspenseful, even for those who know better. Week after week, the script changes—the presidential election, the budget crisis, the fiscal cliff, the Benghazi hearings, the gun control debate—each new script following on the heels of the last, never any let-up, never any relief from the constant melodrama.

    The players come and go, the protagonists and antagonists trade places, and the audience members are forgiving to a fault, quick to forget past mistakes and move on to the next spectacle. All the while, a different kind of drama is unfolding in the dark backstage, hidden from view by the heavy curtain, the elaborate stage sets, colored lights and parading actors.

    Such that it is, the realm of political theater with all of its drama, vitriol and scripted theatrics is what passes for “transparent” government today, with elected officials, entrusted to act in the best interests of their constituents, routinely performing for their audiences and playing up to the cameras, while doing very little to move the country forward.

    All the while, behind the footlights, those who really run the show are putting into place policies which erode our freedoms and undermine our attempts at contributing to the workings of our government, leaving us none the wiser and bereft of any opportunity to voice our discontent or engage in any kind of discourse until it’s too late. It’s the oldest con game in the books, the magician’s sleight of hand that keeps you focused on the shell game in front of you while your wallet is being picked clean by ruffians in your midst.

    President Obama, no different from his predecessors, is particularly well versed in how to use the theater of politics to his advantage. Consider that amidst the cacophony of the fiscal cliff debates, the president signed into law two pieces of legislation, the Foreign Intelligence Surveillance Act Amendments Act (FISA) and the National Defense Authorization Act of 2013 (NDAA), which further erode our most basic constitutional rights by reauthorizing sweeping police powers to be used by the federal government.

    FISA allows the federal government to spy on Americans who communicate with people overseas, whether they are journalists, family members, or business associates, while the NDAA reauthorizes the military’s ability to indefinitely detain American citizens, a provision which first reared its head in the 2012 NDAA.

    While the invasive powers bestowed upon the federal government by FISA and the NDAA should be cause for alarm, they have become part of the unchallenged post-9/11 paradigm that disguises itself as representative government today. This matter-of-fact, all-in-a-day’s work erosion of our freedoms is no less appalling than the routine, relatively uncontested renewal of legislation, passed without debate or question year after year, which flies in the face of every fundamental principle of individual liberty on which this nation was founded. Such is the political playbook being used to chart the nation’s course these days.

    President Obama’s decision to sign the NDAA, quietly and without much fanfare, while the fiscal cliff debate took front stage is a perfect example of political theater at its finest. The NDAA establishes a colossal $633 billion budget for the military at a time when the nation is drowning in debt, the deficit is skyrocketing, our military empire is overextended, and America is allegedly ratcheting down its presence in the Middle East.

    Despite a late November threat to veto the NDAA 2013, Obama signed it into law while on vacation with his family in Hawaii. Similarly, the year before, despite his personal objection to the indefinite detention of American citizens and his insistence that his administration had “worked tirelessly” to amend offending provisions, and would “oppose any attempt to extend or expand them in the future,” Obama signed the NDAA 2012 into law on New Year’s Eve 2011. Sadly, this year’s passage didn’t even merit that much protestation or concern over its indefinite detention provision from the Commander in Chief or his cohorts in Congress.

    Obama may have sailed into the White House promising unprecedented levels of transparency in his administration, but his track record has proven him no different than his predecessors—content to distract the populace with a political circus while undermining the rule of law behind closed doors.

    Just as the enactment of the NDAA ensures that no one is safe from indefinite detention, Congress’ renewal and Obama’s signing of the FISA Amendments Act, which gives the executive branch broad power to spy on American citizens who contact people overseas, leaves us powerless in the face of government surveillance. Making matters worse, there are few out there—government official, congressman or judge—who are willing to step up and put a stop to these violations of our rights. Even that once-vaunted Fourth Estate, the media, which was supposed to act as a check on the government’s power grabs, has become complicit in torpedoing our freedoms.

    Worst of all, however, and perhaps the most frightening state of affairs is that resistance to these government programs, decrees, and laws is minimal, undermined by a complacent citizenry and an uncritical acceptance of the way the government operates. In fact, the farce of American democracy, in which our elected officials perfectly mimic the appearance of representative government while actively opposing our best interests, has become par for the course.

    Thankfully, there are still some willing to stand against the tide. One notable group, comprised of writers, academics, journalists, and activists, including former New York Times war correspondent Chris Hedges, Pentagon Papers whistleblower Daniel Ellsberg, and writer Noam Chomsky, is waging their war against Obama and his minions in court, challenging any attempt by the government to use the indefinite detention provision of the NDAA to limit constitutionally protected activity. For example, it is conceivable that those protesting American foreign policy, or those who interview suspected terrorists for journalistic purposes, may be considered in violation of the NDAA. As Hedges, a Pulitzer Prize winner, explained, “I, as a foreign correspondent, had had direct contact with 17 organizations that are on [the US government’s list of terrorist organizations], from al-Qaida to Hamas to Hezbollah to the PKK, and there’s no provision within that particular section [of the NDAA] to exempt journalists.”

    There are also those within the judiciary who recognize the need for caution. On September 12, 2012, U.S. District Judge Katherine Forrest of the Southern District Court of New York ruled in favor of Hedges, placing a permanent injunction on the indefinite detention provision. Unfortunately, that ruling has since been overturned by the Second Circuit Court of Appeals pending its assessment of the provision’s constitutionality. With any protections against indefinite detention in legal limbo, Hedges warned, “The appellate court is all that separates us and a state that is no different than any other military dictatorship.”

    Indeed, the fact that Americans are utterly dependent on a small group of judges, themselves part of the ruling elite in America, to safeguard their fundamental freedoms shows just how far we’ve fallen as a society and culture. When the rights and liberties which we once took for granted are little more than exceptions to the rule, open to interpretation by government officials who can throw them out based upon expediency, we have entered a new paradigm in America, and it doesn’t bode well for the future of democracy.

  4. “But at the very least, Hagel’s confirmation will be a much-needed declaration that some mild dissent on foreign policy orthodoxies and Israel is permitted. It will shatter AIPAC’s veto power and dilute the perception of the so-called “pro-Israel community’s” unchallengeable power. It will ensure that there is at least some diversity of viewpoints when it comes to debating endless war, belligerence v. negotiations, and MidEast policy. It will highlight the typically-suppressed differences within the GOP and the country about America’s war posture. In sum, as Matt Duss very persuasively detailed in the American Prospect, Hagel’s confirmation would bring some incremental though potentially substantial benefits.

    Given the steadfast and usually unquestioning support most liberals have given this Democratic President as he’s pursued policies of aggression and militarism, they should refrain from opposing one of the few prominent dissidents on these matters absent some very compelling reasons. So far, nothing remotely compelling has been offered. If this nomination actually happens, this will be one of Obama’s best appointments and boldest steps of his presidency. It would be ironic indeed, and more than a bit unfortunate, if liberals decide to make this nomination one of the very few times they are willing to oppose their party’s leader.” Glenn Greenwald

  5. Greenwald today:

    John Brennan’s extremism and dishonesty rewarded with CIA Director nomination

    Obama’s top terrorism adviser goes from unconfirmable in 2008 to uncontroversial in 2013, reflecting the Obama legacy

    by Glenn Greenwald

    Monday 7 January 2013 09.55 EST


    ” At 1 pm EST today, Obama will announce that he has selected Brennan to replace Gen. David Petraeus as CIA chief: the same position for which, four short years ago, Brennan’s pro-torture-and-rendition past rendered him unfit and unconfirmable.

    Although I actively opposed Brennan’s CIA nomination in 2008, I can’t quite muster the energy or commitment to do so now. Indeed, the very idea that someone should be disqualified from service in the Obama administration because of involvement in and support for extremist Bush terrorism polices seems quaint and obsolete, given the great continuity between Bush and Obama on these issues. Whereas in 2008 it seemed uncertain in which direction Obama would go, making it important who wielded influence, that issue is now settled: Brennan is merely a symptom of Obama’s own extremism in these areas, not a cause. This continuity will continue with or without Brennan because they are, rather obviously, Obama’s preferred policies.

    Still, this is worth commenting on because the drastic change between the reaction to Brennan in 2008 and now is revealing. The New York Times article this morning on the appointment claims that “it is uncertain whether the torture issue will now cause any problems for Mr. Brennan.” Of course, there is nothing at all uncertain about that: “the torture issue” won’t cause any problems for Brennan, as it did in 2008, because Obama has buried that issue with his “Look Forward, not Backward” decrees; because most people who claimed concern over such issues back in 2008 have resigned themselves to Obama’s posture in this area; and because, with very rare exception, there are no more serious campaigns mounted against Obama’s decisions except from the American Right.

    It is a perfect illustration of the Obama legacy that a person who was untouchable as CIA chief in 2008 because of his support for Bush’s most radical policies is not only Obama’s choice for the same position now, but will encounter very little resistance. Within this change one finds one of the most significant aspects of the Obama presidency: his conversion of what were once highly contentious right-wing policies into harmonious dogma of the DC bipartisan consensus. Then again, given how the CIA operates, one could fairly argue that Brennan’s eagerness to deceive and his long record of supporting radical and unaccountable powers make him the perfect person to run that agency. It seems clear that this is Obama’s calculus.

    There’s one more point worth noting: the reason Obama needs a new CIA chief is because David Petraeus was forced to resign. Here we see the ethos and morality of imperial Washington: past support for torture and rendition does not disqualify one for a top national security position; only an extramarital affair can do that.”

    (DonS, Thanks for the Marcy Wheeler link.)

  6. woody voinche, in case you missed it, and anyone else who might be interested:

    State of Fear

    By Chris Hedges

    Posted on Jan 7, 2013


    “Daytona-area activists during the fall of 2011 continued to organize events, including sidewalk marches to banks. In most cases they notified the police in advance. At one big event, men in plain clothes and standing with folded arms surrounded a seated group as it held a teach-in.

    “It was extremely intimidating, not to mention the effect on people walking by who might have joined us if it weren’t for these heavy-handed tactics,” McLeish said.

    The local activists set up an Occupy encampment every weekend in December 2011.

    “There were no incidents of any kind,” McLeish said of the camp in Daytona. “No one spoke aggressively to an officer at any time. No one drank or used drugs. We had clearly posted rules to that effect at the camp. There was no violence whatsoever, verbal or physical—as was the case with any event we organized, and we had quite a lot of them. Further, we clearly expressed that while we would act in accordance with our rights, we would not violate any laws.”

    “Given the lengths we went to, you can imagine my dismay as I saw Daytona repeatedly mentioned in national news as one of the main areas under surveillance by the FBI, Homeland Security, as well as some unknown ‘private partner’ agency,” she said. “We were being investigated, according to the released FBI documents, as if we were a ‘terrorist’ group engaged in ‘criminal activity.’ I checked the released pages to see what could only be references to me—my name, age, and phone number. Though redacted, they indicate that any search of people connected with domestic terrorist groups is likely to turn up my name.”

    Since the spring of 2012 McLeish has co-hosted a morning radio show called “Air Occupy” (also streamed online) with Liz Myers and Jerry Bolkcom. They have interviewed, among others, Alexa O’Brien, the organizer of US Day of Rage, and Carl Mayer, the lead attorney in the case Hedges v. Obama, a challenge to the indefinite detention clause of the National Defense Authorization Act. Immediately after “Air Occupy” posted on YouTube the interview about the lawsuit against the NDAA, YouTube permanently banned the radio show on the ground of “violating community standards”—a ban that usually is imposed for graphic, violent or gory images or pornography. According to YouTube’s guidelines, a poster is allowed three “strikes” before an account is terminated. “Air Occupy” had received no notice of “strikes” or warnings of any kind from YouTube.

    McLeish worries about how being a target of FBI attention will affect her life. “Can the inclusion of my name and information on a federal law enforcement domestic terrorist watch list impact my ability to make a living and provide for my children?” she asked. “Can I be subject to retribution of some kind through the NDAA’s new provisions or to federal surveillance due to interviewing other activists or in addition to my involvement in Occupy protests? I can’t afford an attorney to protect myself.”

    “What does such surveillance and militarized response mean for our democratic system of governance as more and more people in our country and abroad struggle to survive and are moved to protest stark economic inequalities, mass unemployment and unfair working conditions, and impoverished living conditions?” she asked.”

    It’s so much worse than many people believe.

  7. Inside Story Americas – Interview with Thomas Drake

    AlJazeera English

    January 3, 2013

    “Summary: GAP client and NSA whistleblower Tom Drake speaks to Al Jazeera about the recent Foreign Intelligence Surveillance Act Amendment extension and its implications on Americans’ civil liberties.”

  8. Thanks Larry for keeping the scumbucket record of the Obama administration on “national security” issues in the fore.

    A couple of related matters:

    John Kiriakou goes to jail — the only “torture” prosecution under the Obama administration to go to jail — and he never committed torture.

    John Brennan goes to CIA — he devised the rules of war fro Obama and virtually institutionalizes the war on terrorism for the foreseeable future, drone strikes, and black holes — and has a murky association with the torture regime.

    And on FISA, Emptywheel (Marcy Wheeler) adds some additional perspective:

    “The resolution of the al-Haramain case has been little noted in the halls of DC. But it really underlies the entire debate about the FISA Amendments Act extension.

    “Because as shitty as the law just renewed is, the government also now knows that they don’t even have to follow that law. They are effectively immune from the law.”

  9. “Gene H. Agree both are responsible, so quit laying everything in the world evil at the feet of GWB”

    I’ll quit doing that as soon as some quit trying to play apologist or pass the buck for W’s crimes. That’s not only historical revisionism, it’s pure partisan propaganda. Both men should be in prison regardless of “who started it”. That whole “one guy is more culpable than the other” question might be relevant in civil litigation, but we are talking about crimes. In for a penny, in for a pound. And both men and their parties are the ones trampling our rights every day.

  10. The Senate is busted, being run by folks too old to plan a successful trip to the loo. Moore’s Law makes a mockery of it.

  11. Gene H. Agree both are responsible, so quit laying everything in the world evil at the feet of GWB. Obama signed this latest bill, not GW. It is not the GW Wiretapping bill, it is the Obama wire tapping bill.

  12. “We all know that all the evils of the world were caused by GWB, but common, it is now 4 years after he left, time to lay that one to rest.”

    False. Those who instigate a crime are just as guilty as those who perpetuate it. Warrantless wiretapping belongs to both men. Both men should be held accountable.

  13. “…the public discussion of George W. Bush’s warrantless wiretapping program…”
    This program may have begun under GWB but this is now 4 years after he has left office. This is the Barack Obama warrantless wiretapping program now.

    We all know that all the evils of the world were caused by GWB, but common, it is now 4 years after he left, time to lay that one to rest.

    Perhaps if we started laying blame on those who are now in control we might be able convince people that someone else is now responsible for their civil liberties being eroded away.

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