As the days remaining in the life of the 112th Congress dwindle, the likelihood that the Senate will act to protect residents’ privacy from unconstitutional governmental spying is shrinking. The FISA (Foreign Intelligence Surveillance Act) Amendments Act (FAA) is up for renewal after a 5-year period of codifying secret illegal spying on Americans’ phone calls and emails. While it would be ideal for the FAA to expire at the end of the year, returning warrantless wiretapping to its formerly illegal status, it is unlikely that the the National Security Agency will allow the program to expire. Instead, like the PATRIOT Act and so many other erosions of civil liberties and civil rights in the United States, the renewal is likely to be pushed through quickly without an open and full debate on whether the government should be allowed to sweep up and monitor the communications of Americans en masse without a warrant or probable cause. There is a narrow window of time for concerned people to demand that their Senators allow a full and open debate on the FAA, with amendments restoring transparency and constitutional protections to intelligence collection, or that they commit to allowing the FAA to expire completely.
The current crisis over the FAA is especially stark when viewed in its historical context. The government has long abused wiretaps to spy on communications without adequate suspicion of criminal activity. Both the Church and Pike Commissions played an important role in uncovering illegal spying, dissent suppression, and numerous other instances of covert government malfeasance. In 1978, after the Watergate scandal, Congress passed FISA to establish the Foreign Intelligence Surveillance Court (FISC), a secret court designed to review warrant requests for surveillance of people in the United States, where the goal of the surveillance was to collect information about foreign powers. The PATRIOT Act later extended FISA’s reach to include “terrorism suspects.” However, in 2005, it was revealed that President Bush had ignored FISA by issuing a 2002 executive order authorizing the NSA to illegally eavesdrop within the United States. The program turned the United States’ foreign spying apparatus inward and flouted the Fourth Amendment by collecting the communications of hundreds, if not thousands, of people within the United States without legal process.
As illuminated by Michelle Richardson at the ACLU, the ultimate congressional response to the revelation of Bush’s secret illegal program was an outrageous decision to issue retroactive approval rather than a restoration of the rule of law.
The FISA Amendments Act passed in 2008 after a protracted and contentious fight over whether the George W. Bush warrantless wiretapping program would be congressionally sanctioned and whether anyone would ever be held accountable for major violations of longstanding privacy laws. The answers would be respectively, yes, enthusiastically, and no, of course not.
Rather than take corrective action, like the Church and Pike committees did in the 70′s, the Senate and House Intelligence committees produced a bill that rubber stamped and encouraged the Executive’s flouting of the constitution. The FAA codified many of the illegal aspects of the spying program and immunized the telephone companies from liability for their complicity in facilitating the government’s lawless behavior. Five years later, the state of exception that congress carved out is about to expire.
Now a number of Senators including Wyden, Leahy, Merkley and Tester stand ready to attempt to restore protections for the communications privacy of people within the United States, by amending the FAA. However in order for these amendments to be successful, the Senate needs to debate the FAA openly with time for the public to hear the potential sweeping implications of the laws on their privacy. Contact your Senator and demand full and transparent debate on the FAA now.