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The Fine Print On Wiretapping Review

Posted by ryuzaki0 on from the always-read-before-you-sign dept.

notarus writes "Congress' new bill to 'force' the wiretapping program to be reviewed by FISA has some very doublespeak provisions. One nice line: 'Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.'"

21 of 151 comments (clear)

  1. So let me get this straight... by Umuri · · Score: 3, Insightful

    So, if i'm to understand that correctly, if you use the grey area rule a bit, that can be construed as to allow anyone exemption if they were considered an agent of a foreign power... And terrorists are certainly a foreign power.. so if they wanted to say i'm a suspected terrorrist, then i'm obviously connected to a foreign terrorist cell, and i'm free game for no legal protection? Or am i just missing something....

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    1. Re:So let me get this straight... by Anonymous Coward · · Score: 5, Insightful

      I don't think you're missing anything. The question is, what can we do to stop these maniacs?

      Seriously, is there any way to stop them before they've entirely subjugated any tiny bit of control we still have over the behemoth that governs us?

      They don't even flinch when they're accused of torture; instead, they argue they have the "right" to torture suspects. They don't even blink when they're caught spying on the communications of millions of innocent Americans; instead, they say they're doing it to protect us, and they blame the whistleblowers for undermining them.

      What can you do to stop a criminal who accuses his victims? It's like a murderer who, when his crimes are exposed, calls for the exposers to be jailed for bringing grief to the families of the dead. This government has no remorse, and doesn't seem to even understand what it's doing -- unless it's all intentional, which is that much worse.

      Is there any way to end the rampage before we're all locked up to protect us from "terrorists"?

    2. Re:So let me get this straight... by Anonymous Coward · · Score: 4, Insightful

      "Just because the media convinces you something is true does not mean it is."

      And unfortunately, the media have been hyping the "War on Terror" because it's sensational; they get more viewers and more ad revenue by playing into the hands of the power-hungry. Only very recently have the big media even slightly questioned what's going on -- and that's only because it's gone too far even for their taste. It's no longer in their financial interest to incite terror when the terror brings about laws that limit their business, but they'll happily promote government and corporate propaganda as long as it gives them a net profit.

    3. Re:So let me get this straight... by dnoyeb · · Score: 2, Insightful

      They are rich people. They are incapable of understanding what they are doing because they do not live with the consequences. Unfortunately, we seem to like to elect people that are nothing like us.

      The beatings will continue.

    4. Re:So let me get this straight... by Anonymous Coward · · Score: 1, Insightful
      "US citizens who aren't into the "spy scene" are in no danger from this particular law."

      I think the point that the OP was making is that if someone's being investigated, they're not necessarily guilty of the crime. They might turn out to be entirely innocent; the investigation is based on some suspicion of guilt, and its purpose is to ascertain guilt or innocence.

      Now, if you are being investigated as a "terrorist" under these rules, you instantly lose your legal rights. It doesn't matter if you've never harmed a fly in your entire life. It doesn't matter if you've never set foot nor made a phone call outside the US. It doesn't matter whether you're guilty or innocent. Simply by being accused of "working in concert with any other country's government" you suddenly lose your rights; you are, in the eyes of the government, already guilty, but they don't even have to prove it in a court. Where is the justice in this? There is none.
  2. Read the whole article, it's important by Beryllium+Sphere(tm) · · Score: 4, Insightful

    The devil is in the details, and he's plotting busily away.

    For one thing the bill allows FISC to issue, not individual warrants, but permission for exactly the kind of driftnet fishing expedition that's never been legal against US citizens.

    Then comes the real land mine. If someone does challenge a domestic spying program, this bill says FISC can "dismiss a challenge to the legality of an electronic surveillance program for any reason". Think about that: "any reason". Not "any legal reason", not "any rational reason", not "any reason related to national security". This simply means the court can throw out any complaint without a hearing just because it wants to.

    "...foreign powers and agents of foreign powers" makes this sound much better than it really is. Just remember that if spying on "agents" doesn't allow enough abuse to satisfy the people behind this, they'll interpret it as "suspected agents". After that, it will somehow expand to "alleged agents" and then to "possible agents", meaning everybody. Then they'll be able to bug the Democratic Party as before, only this time it will be legal.

  3. Usual Suspects by Doc+Ruby · · Score: 1, Insightful
    The NY Times coverage of SPECTRE's latest BushCo ex post facto whitewash says

    the deal would put the court, the Foreign Intelligence Surveillance Court, in the unusual position of deciding whether the wiretapping program is a legitimate use of the president's power to fight terrorism.


    Lichtblau says the FISA Court's position would be "unusual". The FISA Court is the ONLY venue that is ALWAYS in the position of deciding whether US persons are legitimate wiretap subjects. It's position is not just not "unusual", it is absolutely required every time.

    Anyone who isn't complicit in creating a "unitary executive" from Bush's imperial presidency can tell that SPECTRE is just papering the discarding of Congress as the lawmaking body in the USA.
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    make install -not war

  4. Re:Bend over by Daniel+Dvorkin · · Score: 4, Insightful

    East District of Michigan v. Nixon

    Don't you understand? It's a different world! 9/11 changed everything! The US has never ever ever faced an enemy as dangerous to its very existence as AlQaedaSaddamHusseinHezbollahSomeGuyDownTheStreetW hoSaidBushSucks! 9/11! The Nixon administration? 9/11! That's a different world you're talking about! 9/11!

    Oh, and in case you forgot, 9/11! 9/11! MP3 pirates! 9/11! Child porn! 9/11! 9/11!

    --
    The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
  5. Re:Wouldn't matter anyway... by kfg · · Score: 2, Insightful

    . . .there's no way in hell that august body is gonna rule against Prez.

    Not really true, at the moment, as the recent ruling on the tribunals shows; however. . .

    To show close you are to the truth compare and contrast C. Thomas' minority opinion in the imminent domain case, where he was both legally sound and right, with his minority opinion in the tribunal case, where he completely ignores his own legal philosophy in order to favor absolute powers for the president.

    The cognitive disonance is scarey, as is the fact that these fundamental issues of American legal philosophy are coming down to single vote majorities.

    KFG

  6. legal analysis by herbiesdad · · Score: 5, Insightful

    i knew the law degree would come in handy some time. ok, sorry, but you guys have it wrong. the quoted language is to clarify that congress is making no attempt to divest the president of the rights he has in that office pursuant to article ii of the constitution. any efforts by the congress to limit the executive powers expressly granted to the president in article ii are illegal because they implicate a breach of separation of powers. along the same lines, the president could not pass a resolution or treaty that would take away legislative powers from the congress. i take no position on the proposed legislation.

    1. Re:legal analysis by alphaFlight · · Score: 2, Insightful

      exactly! laws that violate express grants of power in the constitution are some of the easiest for the supreme court to strike down as unconstitutional.
      it was refreshing to find your post.

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      -= alphaFlight =-
  7. FUD by Evets · · Score: 4, Insightful

    I see all the political propoganda going around these days as nothing more than FUD. The text of the bill isn't even in TFA, so without doing some legwork (which I'm sure someone here will do), you really have no idea what is in the bill.

    It's certainly within the power of congress to present a bill that would reduce the effectiveness of a previously passed bill.

    My take on this is that anything going through congress should be thought through with the mindset that terrorism is not a factor. Terrorism today is like the war on drugs or the war on communism. It never ends and it's a tool used by the powers that be to do things to the citizenry that would under normal circumstances be impossible. If you strip away the fundamental principals of society to deal with a problem, then the solution is worse than the problem.

    We are dealing with three things here - 1) we live an an information age society that is fundamentally different than the one's which gave birth to the majority of our laws and 2) we have a general populous that is ignorant of that which makes our society great. The third thing is that political maneuvering is based on a polling structure that encourages answering without any pontification or even any background information. Sure, we would all like to live in a well thought out society, but we can't even force the issue of working in a well thought out environment. We can blame our congressman for making bad decisions, but a better solution would be to become involved to the point where we were helping governmental decision making in general better.

    I certainly see that government will always push the limits of it's own power and understand that laws which grant power to the government should be written with a conservative (conservative, not right-wing) mindset. But I also can see that lawmakers have a different perspective than the general populous. They sometimes have a better historical perspective. They sometimes have access to information that the general public does not which factors into their decision making, and they sometimes have motivations completely unrelated to a particular bill that push them to vote one way or another. In the end, they have to live with their decisions just as much as we do. If their track record is so bad, then why is the re-election rate upwards of 90%? Surely it couldn't be pure apathy on the part of their detractors.

    1. Re:FUD by ortcutt · · Score: 3, Insightful

      What about the track record of the Republican-led Congress or Bush administration gives you any indication that they are concerned about civil liberties or even with the most effective means of combatting terrorism? Everything tells me that they'd rather just let the President off the hook and authorize whatever he wants to do. It is also short-sighted to see this as FUD. There are reports about what the bill will contain and many people are rightly concerned that the safeguards put in place by the Foreign Intelligence Surveillance Act aren't eroded. This is not premature. If we wait until the t's are crossed and the i's dotted on Specter's FISA-Gutting-Act, it's going to be too late to respond to this travesty.

  8. the 9-11 changed everything rationale by SethJohnson · · Score: 4, Insightful



    Like you, I'm getting pretty fed up with this excuse for trampling on the constitution and human faces in secret prisons scattered worldwide. While 9/11 was certainly a horrific tragedy, it certainly doesn't represent a threat of such proportions that we need to sidestep the trivialities of the constitution to preserve the continued existence of America.

    While it's a completely different conflict, consider the threat that the Civil War posed to the country. 9-11 was baby crap compared to how close America came to disolving during the Civil War.

    So, yeah, America has been guided through some spectacularly difficult times by that Constitution. And these neocons who are second guessing the original authors of the document, well, I wouldn't exactly put them on the same shelf of great thinkers occupied by the likes of Ben Franklin.

    Seth

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  9. Nothing in any Act can limit the president thusly by Anonymous Coward · · Score: 2, Insightful

    The quote is just boilerplate, designed to save everyone the expense of a court case.

    The fact is, nothing in any Act can constrain the executives authority to conduct foriegn intelligence data gathering. That is a prerogative of the Executive, as enumerated in the Constitution, as interpreted (repeatedly) by the Supreme Court. An amendment to the Constitution is required. First, we establish that foreign intel gathering is seperate from domestic gathering for purpose of applying 4th amendment:

    Katz v. United States, 389 U.S. 347
    Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

    United States v. United States District Court, 407 U.S. 297 (1972)
    "[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

    Let us not forget that the 4th covers people. Surely if seizing foriegners is an Exuctive prerogative to making war, then siezing thier communications is also:
    Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
    "The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force]. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."

    Now establish Constitutional authority for Executive to conduct foreign surviellance:
    United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970)
    "We...discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."

    United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974)
    "In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were "conducted and maintained solely for the purpose of gathering foreign intelligence information.""

    In 1980, the Fourth Circuit decided United States v. Truong
    "For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."

    Foreign Intelligence Surveillance Court of Review Sealed Case No. 02-001
    "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority

  10. Constitutional authority by mybecq · · Score: 4, Insightful
    Nothing in this Act shall be construed to limit the constitutional authority of the President

    The Legislative body doesn't have that power anyway.
  11. Re:How dare you? Here's how. by blank+axolotl · · Score: 2, Insightful
    You lost me when you said "I take no position on the proposed legislation".

    How fortunate.. you lost him right when he finished!

    Also, withholding an opinion (until sufficient analysis is done) is better than jumping to conclusions without careful thought, as you seem apt to do. In fact, the OP's point was that many people posting here hadn't analyzed the story correctly and had the completely wrong idea (and yet are still ranting on)

  12. What about Constitutional Responosibilities? by GISGEOLOGYGEEK · · Score: 2, Insightful

    The President has no constitutional authority to allow the wiretapping program, the doublespeak in the article means nothing. ... Of course since no american judge has the balls to knock down the constitution breaking laws Bush has passed such as the patriot act, Bush is effectively above the constitution. He needs no further authority since you dumbasses won't hold him accountable.

    So the arguement is moot.

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  13. Re:FISA != SCOTUS by Darby · · Score: 2, Insightful

    I really, really hope that consequences are fully thought out by our congress and senate before they agree to this power-grab.

    Oh good god, the naivety of people is really driving me fucking nuts these days.

    Of course they thought it through. That's *why* they're fucking doing it, you simpleton.

    Grow up, pull off the rose colored glasses and deal with the reality you're in, not the delusional fantasy world you wish you were in.

    Are you that out of touch with reality that you actually believe they'll fuck it up by accident?!?

    The consequences you are worried about *are* their fucking goal.

    For ample proof of what I'm saying, just look at the whole entirety of human history.

  14. What's the point again? by lionchild · · Score: 3, Insightful

    One nice line: 'Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.'

    So, um...what's the whole point of this act, if the President can simply decide that this doesn't apply to what he's doing? Are we just paying our Congressmen to generate laws and paperwork that have no meaning or way for enforcement?

    Whatever happened to a system of checks and balances? Geez.

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  15. 9/11 vs mccarthyism by TheGratefulNet · · Score: 3, Insightful

    its just that simple. in the 50's there was the mccarthy 'commie hunts'. fix that and the world will be safe again.

    60's had vietnam. fix that and the world will be safe again.

    70's had watergate. fix that...

    80's and 90's had war on drugs. if we can fix that, all our problems will be solved.

    skip to the '00 century and we now have 'war on terror.

    and guess what, it won't be won, it won't fix ANY of our problems and next decade (god willing) we'll have forgotton all about this silly gov power-play and we'll have a BRAND NEW chicken-little thing to run around saying 'the sky is falling', etc.

    people - there IS no reason to keep giving gov more and more power. give it more power and we seem to get no new returns on our investment. soon, the gov has its fun and then goes off to choose another plaything.

    this is just how the world works. and no, nothing got any better for winning or attempting to win any of these 'battles'. because they are not winnable and if it takes 10 or 30 years, we WILL finally realize that.

    not everything in life is a 'war on ...'.

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