>I’m beginning to harbor a fantasy in which Glenn Greenwald and Keith Olbermann are left together somewhere in the Idaho-Oregon-Nevada country where they would be free to debate the FISA legislation at the tops of their lungs without disturbing much more than some antelope, deer, a few mountain lions, and assorted badgers. [Salon] Both are correct in claiming the Bush Administration has played fast and loose with the U.S. Constitution, international law and treaties, and Heaven Only Knows how many U.S. statutes.
Unfortunately, both have also launched themselves into screeds that purport to define a “real” Democrat, or a “real” defender of the Constitution, or related categorizations – none of which gets us much closer to determining what, if anything, ought to be done with the current legislation. Mr. Olbermann is sure to launch round (whatever it is now) during a ‘special comment’ tonight, and Mr. Greenwald will surely offer another rejoinder.
First, we probably ought to separate what the law is supposed to do from what we might all like to see happen. The bill, in its most current incarnation, is now designated H.R. 6304, and it mainly seeks to address issues raised in Sections 701-703,707 of the FISA statute. Leaving immunizing the telecom corporations, impeaching the president, suing the socks off AT&T, storming the Bastille, and other matters aside for the moment, it is instructive to look at the actual bill:
Section 702 allows the Attorney General and the Director of National Intelligence to jointly authorize the surveillance of targeted persons who are “reasonably believed to be located outside the United States” for one year. Except: (1) no one known to be in the U.S. at the time of acquisition can be intentionally targeted; (2) a person outside the U.S. can’t be targeted to “get at” a person known to be in the U.S.; (3) no U.S. citizen can be targeted outside the U.S.; (4) the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the U.S.; and (4) surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” [Thomas] Short version: No targeting U.S. citizens, no reverse targeting of U.S. citizens, no blanket electronic surveillance of U.S. citizens; no messing with the provisions of the 4th Amendment.
Oversight and Review: Additional provisions of Section 702 concern targeting procedures, requiring the Attorney General and the Director of National Intelligence to develop guidelines which “shall be subject to judicial review.” The Attorney General and Director of National Intelligence must develop minimization procedures, also subject to judicial review. Guidelines for compliance must be submitted to the congressional intelligence committees, the House and Senate Judiciary Committees, and the Foreign Intelligence Surveillance Court. Short version: There are to be reviewable targeting, minimization, and compliance rules.
Section 703 deals with surveillance of those persons reasonably believed to be outside the United States. There is one provision repeated in different contexts that warrants citing in full:
USE OF INFORMATION- If an application for approval submitted pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order is issued approving the acquisition, no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
Section 707 requires regular reports from the Attorney General to the intelligence committees, and to the House and Senate Judiciary Committees at least twice annually. Further, there is to be an amendment to Section 102 including “a statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted.”
Those who were primarily concerned about (1) targeting, (2) reverse targeting, (3) minimization, (4) compliance, and (5) exclusivity, as they relate to FISA programs should find some comfort in the provisions outlined above.
What the bill does not do is settle political and Constitutional questions regarding the behavior of the Bush-Cheney Administration, and herein lies the source of considerable controversy.
Those who believe that the full extent of the Bush-Cheney Administration’s misbehavior can only be determined by full judicial review of its intelligence programs, policies, and the actions of its minions as revealed in open courts, will not be satisfied with the contents of this bill. However, thanks to the cases already launched and the whistles already blown we have a relative good idea of what happened.
We know that the Total Information Awareness program in the Pentagon was shut down in 2003 after questions about its constitutionality were raised. [DB] The National Security Analysis Center’s penchant for regression analysis has been questioned. [DB] The MATRIX (Multi-State Anti-Terrorism Information Exchange System) is now public knowledge. [DB] The Pentagon was embarrassed by the disclosure of its TALON program. [DB] “Genisys,” “EELD,” and “Scalable Social Network Analysis,” and CIFA are no longer secret. [DB] The fact that the Bush-Cheney Administration has been trying to create the “largest database ever assembled in the world,” is now common knowledge. [DB] And, we know that the Bush-Cheney Administration proclivity for operating like a police state caused major problems in the Department of Justice. [WaPo]
Greenwald and others have some justification for believing that unless this kind of outrageous violation of American civil liberties is punished future administrations may be tempted to replicate the literally unwarranted domestic surveillance of the Bush-Cheney Administration. After all, the entire point of punitive damages in civil law is to cause perpetrators to think several times before engaging in such practices. Olbermann, on the other hand, has recently emphasized the prospect that criminal prosecutions can be attempted to make the Administration minions divulge their participation. Both are ultimately seeking the same information: What did the Bush-Cheney Administration do? And, Who did it?
One possible political question then becomes: “Which deserves more emphasis: the punishment of the Bush-Cheney Administration and its minions (including the telecom corporations) for their violations of American civil liberties? Or, the prevention of this kind of unconstitutional and extra-constitutional behavior on the part of future administrations?” A person could argue that while the former is desirable, the latter is essential.
There is an argument to be made that if the price tag stapled to the legislation by the Republican Party for the prevention of future examples of such mis-administration is the immunization of their donors in the telecom industry, then this may well be worth the cost. After all, the telecoms haven’t paid out a dime yet – and will no doubt “fight like Exxon” to keep from doing so. If we may not ultimately have punishment, perhaps prevention will have to suffice.
Another argument worth considering is that the ultimate punishment for any politician or political party is to be so discredited by its actions and policies that the voters turn away from it in droves. The contention that after Operation Shamrock, Nixon’s Watergate fiasco and the Bush-Cheney attempts at a police state, the Republican party and its candidates should never again be trusted to support the Constitution and the civil rights and liberties it bestows, harbors no small amount of validity.
This ‘solution’ requires more from each of us as citizens – that we keep the issue of privacy rights alive and contemporary, and that we demand that those who can keep us informed are protected with appropriate reporter shield laws, and similar 1st Amendment and whistle-blower protections. Perhaps the most difficult part of this perspective is convincing others that “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigue of supporting it.” – Thomas Paine.