Making Sense of the Competing Surveillance Bills

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Thumbnail image for palmer raids.jpgWill the now-more-politicized-than-ever intelligence infrastructure, or the legal system, get to weigh in on the legality of surveillance targeting? With the House and Senate negotiating this week over how to amend the the Foreign Intelligence Surveillance Act (FISA), it's more important than ever to understand the issues.

The Center for Democracy and Technology (CDT) tells us that although Telecom immunity has gotten all the press (certainly I've been fixated on it), judicial supervision is most important:

The House bill, as noted, puts judicial approval where it belongs - at the beginning of the process. In a huge concession to the government's arguments, the House bill does not require judicial approval of individual targets, even if they might communicate with someone in the U.S. Instead, the House bill creates a system of "program warrants" or "basket orders," under which the government can designate the individual targets on its own discretion.

The House bill also takes significant steps to cut off an argument used by the Administration to justify post 9-11 warrantless surveillance outside the requirements of FISA. The House bill's "exclusivity" provision indicates that a Congressional authorization of the use of military force should not be construed to authorize surveillance unless it does so explicitly. The Senate bill, in contrast, merely repeats current law. It therefore invites the argument that Congress might implicitly authorize warrantless surveillance in the future when it authorizes the use of military force.
Yikes! The CDT provides an excellent overview, clearly breaking down what the issues are with the different bills, and what's at stake.

Send support to House leaders! Let them know you want legislation that maintains the rule of law.

~~ Center for Democracy and Technology


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One of the major problems here is that these bureaucracies, regardless of the clarity of the statutes guiding them, have attained a superb degree of power over the past six and a half years. The language of a statute is always obscenely vague because of the nature of the legislative process. That vagueness sometimes crosses judicial limits on validity and is "void for vagueness" under the due process clause. Problematically, when we're talking about wiretapping and surveillance, most of the time there's no suit brought because nobody ever knows its being done. Realistically, an agency only needs a warrant if it intends to use the information gathered in court. Otherwise, presuming some degree of conspiracy, it can simply do what it likes and then (if it's interested) gather evidence for court by legitimate means. If the agency is the CIA it simply skips all that and goes for rendition. If it's the FBI, it uses a National Security Letter to get probable cause to get a warrant.

The point is that we have agencies operating according to security service rules, not police rules. The rule of law stopped being adequate when FISA made warrants a post facto affair and when citizens ceased to have a political party that was fundamentally hostile to the idea of gendarmes-type activity in the United States. The only threat that these agencies really listen to is the threat of removal of funding or maybe the threat of their directors being sacked.

It'll be necessary for a generation to grow up frightened of the government, but with no memory of 9/11 before any real change can be made. Again, this isn't new. "Remember the Maine!" put us into an absurd war that was really about competing in the colonial game. The sinking of that ship and the Roosevelt Corollary to the Monroe Doctrine are quite similar to 9/11 and the Bush Doctrine of Preemptive War. Same game, new toys.

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Six Hours A Week Is:

A coping strategy, advocacy outlet, and form of protection. My life has been nearly destroyed by the unconstitutional practices of politically/socially-motivated private intelligence contractors and the corruption and cronyism that allow them. Apparently because I speak out in ways that prioritize the little guy and human and environmental health above gargantuan profit margins, and believe that facts are as important as PR spin, I was someone who had to be completely discredited. In 2007, after a few months of a surreal and relentless invasion of privacy and dignity, I started to spend six hours each week researching, communicating about, and advocating legal and ethical responses to assaults on our shared democratic and republican ideals. For most of that time I was writing from the perspective of someone whose life was manipulated into a constant state of terror and emergency. In 2010, many of the array of entrapment attempts seem to have failed and it seems no longer possible to get away with such excessive, obvious harassment and overt interference. As we take more practical steps to address what has been allowed to happen to my family, we do expect to see some more harassment and intimidation. But I should be able to chronicle it from a more measured perspective, rather than that of someone in constant fear. Part of me would like to go back and delete earlier posts, because even I find them hard to relate to in some ways. But this blog has been one of our only forms of protection as everyone in any official capacity ignored the truth and tried to spin and frame us into the troublemakers and perpetrators of one form or another. So I leave it up as a form of protection, a record of what has occurred, and (with luck) the account of our way back to credibility and some form of legitimate justice. All content on this site is property of Kyeann Sayer. All rights reserved.

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This page contains a single entry by Kyeann published on March 2, 2008 4:35 PM.

"The Moment of Truth" ~ Fetishising Honesty in an Age of Deceit was the previous entry in this blog.

Insist that Obama and Clinton Take a Stand on "Homegrown Terrorism" is the next entry in this blog.

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