The extension of FISA has passed:
The FISA Amendments Act, (.pdf) which was expiring Monday at midnight, allows the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”
Sounds good doesn’t it? It was passed mostly by Republicans, but my own Senators both voted for it and against all amendments. Adam Serwer and Glenn Greenwald have more, including some disgusting statements by Senator Feinstein:
Wyden proposed that the National Security Agency disclose an estimate of how often these powers have targeted Americans, and that if data on Americans were collected, the authorities seek a warrant before searching for their private information in NSA databases. “I guess you believe that no one is going to attack us, then it’s fine to do this,” Feinstein said. “I know there are people trying to attack this country all the time.”
And the problem is that it’s almost impossible to know how many Americans are caught up in this because the government claims any court case would interfere with secrecy. That’s why Senator Merkley tried to add an amendment:
Merkley’s amendment would compel the public release of secret judicial rulings from the FISA court which purport to interpret the scope of the eavesdropping law on the ground that “secret law is inconsistent with democratic governance”; the Obama administration has refused to release a single such opinion even though the court, “on at least one occasion”, found that the government was violating the Fourth Amendment in how it was using the law to eavesdrop on Americans.
Some groups are trying to bring this to court, but there’s a Catch-22:
The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea.
The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails. Some of the plaintiffs said they now meet clients or sources only in person.
The only way they can show they have standing is to show they have been harmed, but the only way to show they have been harmed is to win the suit. That’s why secrecy is such a bad thing in a democracy.
“It’s a tragic irony that FISA, once passed to protect Americans from warrantless government surveillance, has mutated into its polar opposite due to the FISA Amendments Act,” said Michelle Richardson, legislative counsel at the ACLU. “The Bush administration’s program of warrantless wiretapping, once considered a radical threat to the Fourth Amendment, has become institutionalized for another five years.”