From 2008: Why the FISA Amendments Act Is Unconstitutional

[cali]

February 5, 2008

The FISA Amendments Act gives the government nearly unfettered access to Americans’ international communications. Government surveillance that sweeps up the communications of U.S. citizens and residents should be conducted in a manner that comports with the Constitution, and in particular with the Fourth Amendment, which prohibits “general warrants” and unreasonable searches. The FISA Amendments Act allows the government to engage in mass acquisition of U.S. citizens’ and residents’ international communications with virtually no restrictions. Some of the main problems with the law are:

Unidentified Targets
The government can intercept U.S. residents’ international telephone and email communications without having to even name the people or groups it is monitoring or show its targets are suspected of wrongdoing or connected to terrorism . The target could be a human rights activist, a media organization, a geographic region, or even a country. Nothing requires the government to identify its surveillance targets at all.
Anywhere, USA
The government can intercept U.S. communications without having to identify the facilities, phone lines, email addresses, or locations to be monitored. Theoretically, the government could use the new law to collect all phone calls between the U.S. and London, simply by saying to the FISA court that it was targeting someone abroad and that a significant purpose of its new surveillance program is to collect foreign intelligence information.
No Judicial Oversight
Our system is one of checks and balances. The constitution requires real judicial oversight to protect people who get swept up in government surveillance. The new law gives the FISA court an extremely limited role in overseeing the government’s surveillance activities. Rather than reviewing individualized surveillance applications, the FISA court is relegated to reviewing only the government’s “targeting” and “minimization” procedures. It has no role in overseeing how the government is actually using its surveillance power. Even if the FISA court finds the government’s procedures deficient, the government can disregard this and continue illegal surveillance while appealing the court’s determination.
No Limits
There are no real limits on how the government uses, retains, or disseminates the information that it collects. The law is silent about what the government can keep and what it has to get rid of. It fails to place real limits on how information can be disseminated and to whom. This means the government can create huge databases that contain information about U.S. persons obtained without warrants and then search these databases at a later point.
Not Just Terrorism
The law does not limit government surveillance to communications relating to terrorism. Journalists, human rights researchers, academics, and attorneys routinely exchange information by telephone and e-mail that relates to the foreign affairs of the U.S. (Think, for example, of a journalist who is researching the “surge” in Iraq, or of an academic who is writing about the policies of the Chávez government in Venezuela, or of an attorney who is negotiating the repatriation of a prisoner held at Guantánamo Bay.) The Bush administration has argued that the new law is necessary to address the threat of terrorism, but the truth is that the law sweeps much more broadly and implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind.
Purely Domestic
The law gives the government access to some communications that are purely domestic. The government can acquire communications so long as there is uncertainty about the location of the sender or recipient. A reasonable law would have required any uncertainty to be resolved in favor of the privacy rights of U.S. citizens and residents, but this law requires uncertainty to be resolved in favor of the government. Thousands or even millions of purely domestic communications are likely to be swept up as a result.

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http://www.aclu.org/national-security/why-fisa-amendments-act-unconstitutional

[cali]

1. Obama's history on the FISA Amendments Act- as Senator and President

In October, 2007, candidate Barack Obama — in response to the Bush administration’s demand for a new FISA law — emphatically vowed that he would filibuster any such bill that contained retroactive amnesty for telecoms which participated in Bush’s illegal spying program. At the time, that vow was politically beneficial to Obama because he was seeking the Democratic nomination and wanted to show how resolute he was about standing up against Bush’s expansions of surveillance powers and in defense of the rule of law. But in a move that shocked many people at the time — though which turned out to be completely consistent with his character — Obama, once he had the nomination secured in July, 2008, turned around and did exactly that which he swore he would not do: he not only voted against the filibuster of the bill containing telecom amnesty, but also voted in favor of enactment of the underlying bill. That bill, known as the FISA Amendments Act of 2008, was then signed into law by George W. Bush at a giddy bipartisan signing ceremony in the Rose Garden, which — by immunizing telecoms and legalizing most of the Bush program — put a harmless, harmonious end to what had been the NSA scandal.

Beyond telecom amnesty, the FISA Amendments Act also wildly expanded the Government’s power to conduct warrantless surveillance of telephone calls and emails. In large part, the bill was intended to legalize the illegal Bush NSA program that had caused so much faux controversy among Democrats. As Yale Law Professor Jack Balkin put it: ”Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”; separately, Balkin contended that Obama voted for the bill because, as President, he himself would want the same powers Bush had to intercept people’s communications without bothering with court approval.

When trying to placate his numerous supporters furious over his reversal, Obama insisted he voted for the bill with “the firm intention — once I’m sworn in as president — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future” (that promise caused his then-large band of faithful followers to evangelize that Obama only voted for the bill to make sure he won the election, so that he could then use his majestic power to fix civil liberties abuses of the type he had just voted for; that was when people were still willing with a straight face to invoke the 11-dimensional chess justification for everything he did). Needless to say, it would have been unhealthy in the extreme holding one’s breath for that “we’ll-fix-it-when-I’m-President” promise to be fulfilled, as — more than 2 years into his presidency — nothing like it has remotely happened.

Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law’s expanded warrantless eavesdropping powers violated the Fourth Amendment. Aside from its warped and radically enlarged “state secret” doctrine, the Bush administration’s standard tactic for avoiding judicial review of their illegal eavesdropping programs was a two-step “standing” exercise grounded in extreme cynicism: (1) they shrouded their eavesdropping actions in total secrecy so that nobody knew who was targeted for this eavesdropping, and they then (2) exploited that secrecy to insist that since nobody could prove they were actually subjected to this eavesdropping, nobody had “standing” to contest its legality in courts (that’s how the Bush DOJ got an appeals court to dismiss on procedural grounds a lower court ruling that their NSA program broke the law and violated the Constitution).

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http://www.salon.com/2011/03/21/aclu_10/

[cali]

2. kick. I know this isn't about snowden but isn't this worth discussing?

[Junkdrawer]

3. If we could only tap the energy of Frank Church spinning in his grave....

Climate Change could be solved.

[forestpath]

4. Obama did and said anything to get elected.