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Bill Bans NSA Eavesdropping
An anonymous reader writes "The US house of representatives today passed a bill outlawing illegal domestic wiretapping by the government. Now government agencies are only allowed to access your private communications under terms of FISA. 'As the Senate Report noted, FISA "was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." The Bill ends plans by the Bush Administration that would give the NSA the freedom to pry into the lives of ordinary Americans. The ACLU noted that, despite many recent hearings about 'modernization' and 'technology neutrality,' the administration has not publicly provided Congress with a single example of how current FISA standards have either prevented the intelligence community from using new technologies, or proven unworkable for the agents tasked with following them.'"
This isn't fully baked yet. You need a Senate version, a conference, a final bill... wait for it... and a Presidential signature. Ooops.
You can't talk about Wikipedia's flaws on Wikipedia
Oh.. another veto... just because a bill passes doesn't make it a law
Ask not what you can do for your country. Ask what your country did to you
You know, in our constitution...
"Amendment 4
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
Think Bush will get that Veto out again? He really doesn't seem to like things that get in the way of his goals.
todo - The developer's equivalent of confession: "Forgive me Father, for I have sinned..."
How do you outlaw something that's already illegal? That means they made it legal.
This is really about the separation of powers. The President insists that since he has wartime authorization, he has pretty wide authority to break the law. That is, the law is written, and he doesn't have to follow it because another law trumps it. That's what you get when you have a big, complex legal code.
This bill doesn't really change anything legally, but when it comes time for the third branch of government to have their say on the issue, Congress' intentions will be unambiguous: yes, they do mean that FISA is the ONLY way you can do domestic wiretapping.
It would be nice if laws could be simple and unambiguous, like a well-written piece of software. Instead, laws are written over a long time by a lot of different people, just like real software. Software crashes; laws get inconsistencies. You can point it out for laughs but when it's your phone they're tapping, or your right to life/liberty/property sitting in the ambiguity, it's not so funny.
My blog
Everyone else already pointed out why this is stupid: it's already illegal, and the President who has been breaking the law aready will have to sign it, and even if passed there is no indication this will carry any more force than FISA. It's a law just like FISA. If the President has been violating FISA openly why wouldn't he violate this law just as openly? Courts are only going to be moderately helpful. There's a large chance they will acquiesce to Bush's claims of national security - therefore any such cases cannot be tried. Plus, he had 6 years to install his own appointees that will probably agree with him, including two Supreme Court Justices. What we really need is an impeachment trial.
Correction: Only in the US Government do you need to outlaw something that is already illegal.
In the US, making something illegal is but the first step in outlawing that action or thing. The next step is to outlaw it, but even then, the thing has to be ostracized, vilified, hog tied, circumcised, deep fried, and then finally, it can be made to be a "bad thing", which is often punishable by a lot of hooting, halooing, and in more serious cases a downright hullabaloo; but only when it is made a "terrible thing" (a much more involved and convoluted process, not to mention expensive) are there any real consequences.
another veto... or is that a line signature?
Either way, it's not going to have an effect on the current President.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
The US government is "at war", so they have special dispensation to break laws whenever they think "national security" is as risk.
The fact that the USA is always at war and that pretty much anything seems to count as "national security" means that on an average day they've already broken several laws before breakfast.
This bill is Congress trying to put a stop to the farce. The only fly in the ointment is that no law is final until the president signs it, and he's the one abusing the law. Is he really going to sign away his own powers? Based on his track record ("Patriot act", etc.) I doubt it.
No sig today...
What a country.
Engineering is the art of compromise.
No. It is about a power that was never made available to the federal government in the first place. Warrantless wiretapping is unconstitutional, period. That includes FISA. FISA represents exactly the same kind of reasoning as the ridiculous topsy-turvey interpretation of the commerce clause. The premise is that wiretapping itself does no harm, completely ignoring the breach of your security. Here is the fourth amendment:
You'll note the order there - it isn't an accident: first they get the warrant, then then they can search, seize and generally violate you security. This is the basis for telecommunications law that outlaws wiretapping in the first place.
FISA is based upon the very peculiar notion that they can first tap, and then ask for a warrant, and if a warrant is not issued, then they just "forget" about the tap and - somehow - everything is just peachy. But clearly, it isn't. Your security and privacy was violated, without a warrant. This of course is entirely aside from the fact that FISA is a rubber-stamp organization; just look at the statistics for warrants granted as opposed to warrants refused. Consider further the fact that I am not allowed to put a tap on your phone line. For any reason. I'm not even allowed to listen to a cell phone conversation you broadcast on an analog mode cell connection or an RF-based portable home phone. This is because it is an invasion of your privacy; and because your security is threatened. It isn't because I didn't get a warrant (I can't, as I am a citizen, not a member of law enforcement) and it isn't because I could get a warrant later, if it seemed like I needed to - I still can't. No, it is simply because your security is guaranteed by the constitution, and it is very clear that such an action would be in violation. But this is exactly what the government does with FISA. They don't bother to get a warrant, they just listen whenever they decide they want to. Clearly, FISA is unconstitutional.
Lastly, all arguments that the constitution is irrelevant here somehow because of "need" are false. If there is a real need, the constitution contains the tools required so that it may be modified such that those needs may be met. No, this is simply an end-run around the intent of the document without having to be inconvenienced by its restrictions. Remember, the constitution is the constituting authority for the federal (and state, with regard to amendments 1-10, as per the 14th) government, and any action that is forbidden on the one hand, or not an enumerated power in the case of the feds, is both unconstitutional and lacking any legitimate authority. Don't confuse power with authority.
I've fallen off your lawn, and I can't get up.
You know what worries me most about this, is that unless there is a direct confrontation between one of the other branches and the president before Bush leaves office then it leaves these questions unanswered. It scares me to think what an actually competent president would do with these powers.
A blog about stuff.
See, as a Canadian, this is what seems strange to me about the American government: your constitution is supposed to be the highest law in the land, correct? And the only way to change the highest law is to basically have your Congress or States jump through all kinds of flaming hoops.
Correct me if I'm wrong, but does not your Fourth Amendment rule out blanket wiretapping of your own citizens without a warrant? Making this wiretapping illegal?
Perhaps I'm reading this too simplistically or something. Are there some sort of "wartime" rules that rise above this Fourth Amendment?
What is is all that is. Isn't that obvious?
Every branch
--
The fundamental foolishness of government is that, short of bloody revolution, it lacks some aspects of a degenerative feedback loop to stabilize it.
Separating the legislative, executive, and judicial powers of the government is certainly a step in the right direction. Some might argue that the balance of federal, state, and local separation has been screwed since the Civil War. (Certainly slavery was false, and a societal crack running back to the Constitution; not trying to say the Civil War was unjustified, merely that the shift from 'these United States' to 'the United States' is subtle and important)
Internally to the three branches of government though, the question is this: do their size/complexity reflect the requirements of society, or as Civ IV so brilliantly put it, is: an accurate appraisal?
Get thee glass eyes, and, like a scurvy politician, seem to see things thou dost not.--King Lear
This bill, even if it became law, is quite redundant. Using FISA is already the only legal way to do domestic eavesdropping. This bill is a statement. It essentially says "we, the congress really do mean for what you're doing to be illegal. No, we will not cover your ass by legalizing it, retroactively or otherwise."
The existing law is perfectly clear that domestic wiretapping without a warrant gotten through FISA is illegal. Bush has publicly admitted that he has done so. The only legal justification given by him for breaking the law is that he doesn't think the law applies to him.
So it seems that it is Bush who has confused "legal" with his own preferences, and that you somehow believe that this is true, that his preferences define legality. Well they don't. The law is perfectly clear, and it is perfectly clear that Bush is breaking it because he has stated that he has done so.
BTW, is the something that someone could do impeachment? If you're going to use the "if nobody has done anything to him, it couldn't have been illegal" argument you might want to take into account political realities.
The enemies of Democracy are
That's a very good point. For a while now my personal emails have had this sig:
"When the president does it that means that it is not illegal."
- Richard Nixon on domestic surveillance, 5/19/1977
"Do I have the legal authority to do this? And the answer is, absolutely."
- George W. Bush on domestic surveillance, 12/19/2005
I think it's pretty clear that Bush subscribes to the philosophy of presidential power that you describe. I believe it was Frontline that reported how Bush, Cheney, etc. felt that the president needed to regain his power from congress.
It's a real shame that congress' only recourse is impeachment. (I've yet to understand what censure really does to an already unpopular president.) It's also a shame that congresscritters view themselves as Republican first, congresspeople second, then representatives third. This makes them adverse to opposing presidents of their own party.
The problem is that having FISA issue warrants for the kind of surveillance the Bush administration wants IS NOT POSSIBLE.
How is FISA going to approve tens of thousands of warrants?
Irrelevent, because even if they could issue 10,000 warrants, 9,999 of those search requests would be completely and utterly without any merit whatsoever because the government had absolutely no reason to think that person had any useful information. FISA would not issue any of those warrants individually, why on earth would they issue them en-masse?
FISA or any other court wouldn't issue warrants for the kind of searches Bush wants. They are meritless searches. They are unconstitutional searches. They are illegal searches. That's the real reason FISA can't issue such a warrant.
Separate from FISA itself, is computerized monitoring of millions of phone calls as intrusive as a human agent listening to a particular person's phone calls? I think we'd all say no. So should we be willing to accept a lower burden on the governement for this sort of automated search?
Oh, I highly disagree. I think monitoring millions of phone calls of innocent people is WAY more intrusive than the monitoring of a single person who the agent has reason to think is doing something illegal sufficient to convince a judge that a warrant should be granted. The whole reason we have the 4th Ammendment is so that the police can't just search everyone in the desperate hope of finding a crime. Now that computers have let them do this to literally millions of people, you think it's less intrusive?!
And maybe you feel better if it's only a computer listening to you, but how exactly do you know that an agent didn't decide to listen in on your call? What do you think all that data does sitting on NSA computers; you think the NSA agents can't access it?
The 4th amendment was written in a time when 'search' meant agents of the government came into your home or business and actually PHYSICALLY SEARCHED it. Automated search of electronic communication could not possibly have been considered then, and is thus something we need to consider now.
Or a "search" meant agents of the government read your mail. What's the difference between automated search of electronic communication, and a huge room in the back of the post office with federal agents reading the mail of random U.S. citizens, other than e-mail and NSA computers allows many more random citizens to be illegally searched?
The great thing about the founding fathers is that they worded things such that they described basic principles and not specific technologies, and thus we don't actually have much to consider. The invention of the telegraph and the phone didn't do much to change the way this was viewed. Neither has the computer.
But you're right, we should consider automatic en-masse surveilance without a warrant. Hmm... nope, still unconstitutional. Well that was easy. Time for tea.
The enemies of Democracy are
Warrantless wiretapping is unconstitutional, period.
And where does the Constitution say that?
It doesn't. Why doesn't it? Because in 1789, there was no such thing as electronic communication.
In 1967, the Supreme Court ruled that the protections of the fourth amendment applied to electronic searches as well as physical searches. But you must keep in mind than in 1967, electronic searches pretty much meant having people listen to other people's phone calls.
It's now 2007. Electronic searches mean a lot more than just people listening to other people's phone calls. Whether a computer monitoring all phone calls constitutes an illegal search or not is not a given. It is not unreasonable that the courts could say that computerized monitoring of phone calls is not due the same 4th amendment protections as human monitoring. Or they could say that it is. But neither has happened yet.
In the meantime, a law which says you can't use computer systems to monitor masses of phone calls isn't a bad thing - it makes it illegal now, definitively, without waiting for court interpretation of the scope of 1789's 4th amendment in 2007.
paintball
I support them by respecting the fact that they do their job, even though I don't agree with their orders. Just because I stopped giving extra funds (above my taxes) to them, doesn't mean I don't appreciate their willingness to follow orders as a good soldiers should. I would never insult a soldier for his actions in Iraq if he were under orders.
I guess there are differing levels of support...our retard-in-chief seems to see things in a binary fashion tho.
Blar.
What people who say that "This is redundant" are missing is that, for the past three or so years, when Bush has been asked about illegal activities, he states that the Iraq War Resolution gave him, in his role as "the commander guy", the power to undertake whatever means necessary to "defend the country". This law is making it explicitly clear that Congress no longer wants him to assume this particular power and, if the President tries to use this excuse again for this purpose, it is very likely that the Congress would have serious grounds for impeachment. This, of course, assumes that the bill becomes law, something that is very uncertain, given that Bush is likely to veto the legislation and that there are probably not Congressional votes to override his veto. On the other hand, it also lets the Democrats say that they are clearly not in favor of this activity and firmly ties the opposition to (implicit) support this action. All-in-all, it's a good thing, either way.
That is all.
So a judge has never thrown out evidence in a federal case because of an unconstitutional wire tap?
The standards for wiretapping in a law enforcement capacity are different than the standards for wiretapping foreign agents in an intelligence capacity. Are you claiming they are precisely the same?
Are you also claiming that the penalty for this wiretapping should simply be that the evidence can't be used in a criminal trial? Since the goal is to prevent terrorism rather than to win in court rooms, that's not much of a problem.
Care to come up with a relevant example and some case law where a court has upheld a signing statement...
There's no reason a court would take the case. The signing statements have no effect. What would a court say? "We disagree with the opinion expressed in the President's signing statement"?
>The 4th amendment only mentions people and things. The 4th amendment does not mention conversations or phone calls.
If they'd had phones back then, you can bet your ass they would have included them!
The idea is that the government has to leave you alone unless it can articulate some reason that a judge would find convincing that you have committed a crime. *That* is the essence of the 4th amendment. Anything more than listening to you as you walk down the street should require a warrant. The framers knew the value of keeping the government weak.
-- Give me ambiguity or give me something else!
You don't know that.
And the reason you don't know that is that the court providing oversight that would ensure such was specifically avoided.
All you have is their claims about the specifics of the wiretaps.
"The FISA court cannot impead the President's constitutional powers to conduct war."
That's not at all clear.
Conducting war, unlike what the bushies would like you think, does not abrogate any law. That is, if it's illegal in peacetime, it's illegal in a state of war, unless congress passes a law otherwise, and it passes muster by the supreme court.
The correct thing to do for Bush is to challenge the authority in the courts, but of course, he might lose.
Personally, I think ignoring laws under the guise of "executive in time of war" is grounds for impeachment. And I'll bet I'm not the only person who feels that way.
Um, no.
The reports are that they do this and then go after them without warrants, "traditional" or otherwise. In fact, that the very recording is through an automated system based on the connectedness. Were they securing warrants, this would be clearly within FISA. (Except that even the FISC would probably deny the warrants, since even FISA warrants still require probable cause, which such analysis would be unlikely to produce, even by a stretched definition.)
That's not true, either, it (whether it should be or not) fairly clearly is not, which is why, if the reports were generally as you describe, the system would be legally uncontroversial, though perhaps still politically controversial.
Yeah, see, the whole principle of limited government is that the citizenry, through laws dependent on the basic law, the Constitution, determine what government can and cannot do. Government may keep secrets within that legal framework, but parts of the government don't get to decide they have more power than they have been legally assigned just because they think things might work better that way. Government officers have the powers they are granted through law, not the powers they think would be convenient.
Not that, in fact, the Bush Administration has asked for forgiveness or permission.
Strange that so many reports of terrorism investigations both here and abroad even before this system became public reported terrorists doing that. I suspect that the NY Times revelation was not the first time terrorists considered the possibility that they might be being surveilled.
But he can't be a diabolical mastermind and an idiot.
Slashdot: Where people pretend to be twice as smart as they really are by behaving like children.
I should respect someone who invaded a foreign country and killed their fellow man in "a war which [they] opposed"? Because it was their job???
Sorry. I reserve my respect for people who don't compromise their ethics and then try to shore up public support by draping a flag over their shoulders in the name of nationalism. Support the troops!
Too bad none of them are generals. Or attorney generals.
You are welcome on my lawn.
If the bill is vetoed, then can the president claim he really does have this power? What if the bill is repealed?
Creating a bill like this implies that the current practices are legal, and that this law changes that. In the minds of the players, the law actually weakens exactly what they are trying to protect.
No invader, no matter how good his intentions are, no matter how much he only follows orders, is never going to gain my respect.
The whole war is illegal as far as I am concerned, so every single person there has no moral justification whatsoever.
OTOH, every Iraq parson who fights against the occupying forces (instead of each other) gets my highest respect. They are outpowered by high tech equipment and ruthless spray-n-pray "soldiers".
Wow, I get flames from the left and the right. I must be on to something.
Now, there are cases right now which allege that the order to deploy was illegal, and I support inqueries on this matter even though neither the civil nor military courts are in a position to answer this question. The civil courts are not designed to answer things pertaining to political questions, and the military questions are not allowed to question public policy (and for good reason). For those who felt that their conscience meant disobeying the order to deploy on these grounds, I support them.
However, unless one feels that the order falls into a specific set of categories, I think that a soldier has a duty to obey them.
I do not feel that "support our troops" means "support our war" and I certainly do not think "support our troops" means "vote Republican and support our President." We as the civilians in a democractic Republic have an obligation to discuss and question these things. And as a country, we have an obligation to speek our mind regarding the war, the job of the President, and the like.
But we should never forget nor cease to appreciate what some people do for a love and sense of duty. Questioning the war is not questioning their duty. Questioning the President is not questioning their duty. And supporting our troops as they go through hell out of nothing more than an attempt to uphold their oaths to follow lawful orders does not diminish criticism of the war.
LedgerSMB: Open source Accounting/ERP
What people tend to forget is that problems such as the abuse of prisoners only came to light because they WERE the anomaly.
I am not so sure. If it was one person in Abu Ghraib, I would agree, but when more are involved you have to ask what exactly lead to this and how systemic they are. My own suspicion is that these problems are caused not by just a few trouble makers but rather by a dispersed group of people (still a small minority) who believe that what they watch on '24' makes for good interrogation practices because they identify with the character of Jack Bower. This qualifies to me as systemic but is not a matter of the chain of command.
However, this does not really matter. The real issue is: soldiers have an obligation to uphold the laws of war. THis is even in the oath our military men and women take to faithfully execute all lawful orders. We do train our soldiers to handle these situations, and to uphold such laws. Those who fail in this regard do not deserve our respect or support. However, as the title of my post indicates, I think that they are a minority.
The reason that they tend to forget this is because our domestic enemies, aka the left, work very hard to create the false impression that our military is in the business of abusing people.
To confuse dissent with treason is to undermine the very liberties we hold dear.
In a Free Nation, I do not believe anyone, by expressing any political idea, can ever be a domestic enemy on the basis of that expression. That even includes those demogogues, like Coulter, who seem intent on destroying the very basis for our free society. For if our nation does not have the choice to give up that very freedom that defines us, can we really be truly free?
Look, at the point where we start to confuse dissent with treason, we are in serious danger of losing the very liberties which have defined our great republic. However, the proper response to people who suggest that those who differ politically are somehow to be defined as domestic enemies is to respond with rational, thought-provoking, well-framed arguments.
During the last war that was an overseas extension of our ongoing war with our domestic enemies, aka the Vietnam war, the left painted our soldiers as "baby killers," a characterization of the military that is still prevalent among the leftists of that generation to this day.
I have talked with at least one Vietnam Vet who did shoot and kill a child in self-defense. This is not a war crime, though the VC committed one when they had this kid throw grenades at our army.
If other soldiers committed war crimes by indiscriminatly killing civilians within target areas, then those soldiers and those soldiers specifically can and should be excluded from our support. However, my point is that even so, the actions of such criminals should not be used to withold support from those who faithfully executed lawful orders out of a sense of duty.
I once knew a girl whose mother "disowned" her when she joined the army after high school. The rationale was that the military was made up of nothing bu "baby killers." I was only 18 at the time, and while I knew her mother was mad, I didn't realize that her insanity was the result of leftist indoctrination. I was too young to realize that large groups of people can be hopelessly and completely full of shit. Impervious to logic, resistant to experience, and all but immune to encounters with the clue-bat. Some forms of insanity are communicable. Some do eventually come to their senses and join the rest of us in the real world, but sadly for many it is a life-long ailment.
I come from a Quaker family. Quakers have forbid members from serving in the armed forces since well before the American Revolution. There are other religious groups too with a long history of conscientious objection (Mennonites, Hudderites, and a few others). Under current statutory and con
LedgerSMB: Open source Accounting/ERP
The whole war is illegal as far as I am concerned, so every single person there has no moral justification whatsoever.
OTOH, every Iraq parson who fights against the occupying forces (instead of each other) gets my highest respect. They are outpowered by high tech equipment and ruthless spray-n-pray "soldiers". First, I have never said I don't respect those who are fighting for what they feel is the right to form their own government without interference from outside. Many of these Iraqis have spent a long time fighting Saddam. Saddam knew this of course, and because he knew he could not win, armed them as we were preparing to invade (the BBC covered this interestingly enough, but the full context was made clear by International Crisis Group reports-- the only group I have ever found to have consistantly good information about Iraq).
Secondly, whatever you think of the war, it is important to note that even those who did have the best information available were clearly divided as to whether the war was necessary. The necessity of war was one of a number of legitimate disagreements. ANd while I have always opposed the war, I accept that people who are as well informed and well intentioned as I have supported it.
Third, I do think that we need to be careful about an exit strategy. We have no centralized opposition, and there is a good chance that, despite the fact that our presence is destabilizing the region, a badly executed retreat will be worse. While Bush has made some steps (anti-debaathification, etc) thee are probably too little too late. We really need something more comprehensive and stronger.
1) Conditional security guarantees for Iran and Syria. We should articulate that we are willing to give security guarantees to these countries provided that (in Iran's case) certains steps are taken to prevent them from developing nuclear weaponds, and provided that they (in both their cases) do not continue to support any organization which attacks targets inside the 1949 armistice lines that define the closest thing Israel has to a border.
I think our position re: Hizbullah should be:
We do not care about attacks against IDF targets in Golan. We do not care about IDF targets in the West Bank. We do not care about attacks against settlements. We do not care about attacks against IDF forces in Gaza. However, once the Green Line is crossed that is another matter. If IDF forces decide to take advantage of this and shell parts of Lebanon from inside the Green Line, the Lebanese Army (and not Hizbullah) has the right to respond.
Rationale: As long as Iran or Syria feels threatened and vulnerable, it is in their interest to keep Iraq unstable so that our forces cannot launch a committed war against them. It is in everyone's best interest for a clear position to be articulated, and this may provide some leverage against Hizbullah if executed well.
2) We need to communicate clearly that our forces are non-political and will only stay as long as we are asked to by the Iraqi government. However, if we are to stay, the Iraqi government must agree that government officials cannot be involved in other militias. Not the Badr Brigades, not the Madhi Army, etc. The government must allow such organizations to be forceably disarmed or even outright attacked if necessary. And all Iraqi police and military units must be multi-ethnic.
Rationale: Currently the Iraqi Civil War is such that one side is hiding behind our troops while committing atrocities. We can't let that continue to happen.
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