May 21, 2022

Protecting America

Congress recently passed another security-related bill that may potentially infringe on American’s rights.  In reference to the current Foreign Intelligence Surveillance Act, the bill states, among other things, that:

Nothing in the definition of electronic surveillance under section 101(f) [ed. of the current act] shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that—

1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States…

2) the acquisition does not constitute electronic surveillance

3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications

4) a significant purpose of the acquisition is to obtain foreign intelligence information…

This is interesting language in that it’s rather vague considering that the new “Protect America Act of 2007”, like its predecessor, deals with “foreign intelligence”. Now it seems that a suspect must only be “reasonably believed” to be on foreign territory. This, of course, is a term open to liberal (no pun intended) interpretation, as is the phrase, “a significant purpose of the acquisition”.

This legislation is designed to be abused, in other words.

Notice item 2 in the list above that disallows electronic surveillance. This is an outright falsehood. The entire purpose of the bill is to open electronic sources – email, messaging, cell phone calls, voice mail, etc. – to the alphabet soup of federal security agencies. Any other interpretation is either exceptionally naive or dishonest.

Pretty strong language, you say? This is demonstrated in item 3 above. Referring to intercepted information it says: “…as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications”.

By definition, communications, equipment, transmit, and store are all technical terms that are exclusively applicable to electronic communications.

It’s this sort of cynical lie that undermines the credibility of both the government and the rule of law. Stupid laws cannot be respected. They are obeyed, perhaps, out of fear of punishment, but never respected. Laws that are presented to the public as being one thing when in reality they are another thing entirely suffer from the same flaw. There may be a valid reason for the deception but the effect is the same as with stupid legislation – citizens cannot respect a law that is implemented dishonestly once the lie is discovered. Such will be the case here, I believe.
President Bush says:

Today we face a dynamic threat from enemies who understand how to use modern technology against us. Whether foreign terrorists, hostile nations, or other actors, they change their tactics frequently and seek to exploit the very openness and freedoms we hold dear. Our tools to deter them must also be dynamic and flexible enough to meet the challenges they pose. This law gives our intelligence professionals this greater flexibility while closing a dangerous gap in our intelligence gathering activities that threatened to weaken our defenses.

We know that information we have been able to acquire about foreign threats will help us detect and prevent attacks on our homeland. Mike McConnell, the Director of National Intelligence, has assured me that this bill gives him the most immediate tools he needs to defeat the intentions of our enemies. And so in signing this legislation today I am heartened to know that his critical work will be strengthened and we will be better armed to prevent attacks in the future.

While I appreciate the leadership it took to pass this bill, we must remember that our work is not done. This bill is a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law.

There may be valid security reasons for this particular set of amendments that are not currently known to the public at large. Presumedly this is why a significant number of Democrats – elected as they were to stop the erosion of Americans’ civil rights – abandoned their cries of “foul” and voted for this bill even though:

…we were in the very wheelhouse of an impeachment prosecutor. Leading Democrats railed against Bush, called him the worst ever, stopped short of suggesting he resign only because they feared Cheney more.

So now, what happens last Friday and Saturday?

The Democrats in the U.S. Senate and the U.S. House of Representatives voted to make legal everything Bush’s secret NSA program was up to and more. Every bit of the so-called violation of Americans’ constitutional rights was made legal by a vote of Democrats, the very people who got elected decrying and condemning Bush’s so-called trampling of the Constitution.

Where’s that impeachment talk now? Where are the people demanding he live up to an antiquated FISA law?

They just voted to let this president ignore all that red tape of the FISA system.

Boom! What was illegal is now legal. And the very people who condemned Bush for doing it have now, with their vote, admitted wiretapping keeps Americans safe, just as Bush said.

There is another explanation for Democrats behavior, of course, and that is that they never had any intention of following through on their party’s supposed agenda of restoring liberties and that their constant carping at Bush’s policies was simple political hackery. That’s what the NY Times says:

Many of the 16 Democrats in the Senate and 41 in the House who voted for the bill said that they had acted in the name of national security, but the only security at play was their job security.

the spectacle left us wondering what the Democrats — especially their feckless Senate leaders — plan to do with their majority in Congress if they are too scared of Republican campaign ads to use it to protect the Constitution and restrain an out-of-control president.

The votes in the House and Senate were supposed to fix a genuine glitch in the 1978 Foreign Intelligence Surveillance Act, which requires the government to obtain a warrant before eavesdropping on electronic communications that involve someone in the United States. The court charged with enforcing that law said the government must also seek a warrant if the people are outside the country, but their communications are routed through data exchanges here — a technological problem that did not exist in 1978.

Instead of just fixing that glitch, the White House and its allies on Capitol Hill railroaded Congress into voting a vast expansion of the president’s powers. They gave the director of national intelligence and the attorney general authority to intercept — without warrant, court supervision or accountability — any telephone call or e-mail message that moves in, out of or through the United States as long as there is a “reasonable belief” that one party is not in the United States. The new law all but eviscerates the 1978 law. The only small saving grace is that the new statute expires in six months.

In the short term, such spying undoubtedly makes us safer. Bush is not going to call off elections in 2008, the shrill cry of paranoids aside, and we’re not going to become a military dictatorship any time soon. We are not in immediate danger of becoming Soviet citizens, in other words, caged in an iron-clad set of rules that imprison us under the guise of national security.

Our lives will go on with little or no change beyond the suspicions we’ll feel whenever the phone line clicks or an expected email doesn’t arrive. Yet our liberties will be limited and probably forever. When does a federal law ever go away? When was the last time when some significant thing that was once illegal became legal?

While serving little purpose, the new law has real dangers. It would allow the government to intercept, without a warrant, every communication into or out of any country, including the United States. Instead of explaining all this to American voters — the minimal benefits and the enormous risks — the Democrats have allowed Mr. Bush and his fear-mongering to dominate all discussions on terrorism and national security.

Despite the 180 day lifespan of the new measures, do any of us really believe that they are temporary? I don’t, no more than I believe that they are not aimed at electronic surveillance. They will last as long as the “war on terror” continues, at a minimum, and I suspect there will always be a reason for them to exist, whether that reason is legitimate or not.

The real problems with this law are that it will live on long after it is needed – if it ever was – and that it sets yet another precedent denying Americans’ right to privacy. Based on what I know, it seems Democrats would have been well-advised to have stuck to their guns in order to preserve a future free of Big Brother, for this is a danger just as real and potentially more harmful to Americans than foreign terrorists.

marc

Marc is a software developer, writer, and part-time political know-it-all who currently resides in Texas in the good ol' U.S.A.

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