6 posts tagged “fisa”
Mr. President,
It is with great sadness and regret that I must decline your emailed request. I do this with intimate and personal knowledge of how important this legislation is. I am a computer consultant by profession, and with the downturn in the economy, my income has been slashed to a small fraction of what it once was. In fact, our family has had to rely heavily on my wife's part-time income while I attempt to build a whole new business. Last week, that reliance ended. In a fall down the cellar stairs, my wife broke one ankle and the other foot. Because I have been self-employed for the last 2.5 years and my wife is only a part-time employee with no benefits, our only health insurance is what we can afford to pay for out of pocket. The bills arising out of her injury and her inability to work combine put us in a precarious position.I find myself having to rely on the charity of others, on the Council for Aging in our small town, on volunteer organizations such as Household Goods Recycling of Massachusetts, and the support of family members.
Believe me, sir, I know how important health care reform is. I understand intimately how critical the Recovery and Stimulus plan are. I could not believe more in the important work that lies before you economically and with regard to health care. I understand that health care was, quite understandably your primary object during much of the campaign and that the economy has become both a problem of its own and an obstacle to the extremely hard work of making progress on health care.
Sadly, sir, while I believe all that, and my own livelihood and home are threatened by the dual threat of healthcare costs and the collapsed economy, none of that is my primary concern. No, sir. My concern is for the health of our Republic and not of the body or the economy. I love my wife, and I love my family, and I love my home. But we are strong and we will survive, somehow. My deepest concern is for the heart and soul of this country, for the Rule of Law, for the principles upon which this great nation was conceived, and to which it is dedicated. And that, sir, I believe is endangered. It is endangered by torture; by indefinite detention; by warrant-less surveillance, search and seizure; by kangaroo courts that fail to uphold either our civilian laws or the uniform code of military justice; by the notion that the highest ranking officials can break our laws and not be investigated, let alone prosecuted; by a government that clouds its crimes in claims of secrecy and unspecified nationally security. Today, sir, it is endangered by you.
After eight years of a Presidency that plumbed depths of deceit, greed, corruption, war crimes and the arrogation of raw power, I voted for you in hopes that we could turn the page, that we could heal this land, that we could restore the rule of law. Sadly, sir, it seems that we cannot; that your view of the presidency, of executive privilege, of state secrecy, of the immunity of the powerful from the rule of law is too tainted by the power illegitimately accrued by your predecessor. It seems, sir, that the old adage is true. Power corrupts and absolute power corrupts absolutely.
So, no, sir, you may not have my voice on health care, nor on the economy. You may not have it even though the woman I love is in bad need of better health care, even though this economy is depriving me of the ability to support my family. At this time, even in the face of those great crises, I have only enough voice for this: "Return us to the Rule of Law, not men." Close Gitmo. Stop the Military Commissions. Try the prisoners or free them. Forswear prolong and preventative detention. Investigate the War Crimes and prosecute the guilty. Stop hiding behind Executive Privilege and National Security. Save my country. Save it for my children and their children. Save it for your children. This is not a distraction. Without our Soul this country dies.
I will find some way, through the charity of strangers, the support of my family or the Hand of Providence to get my wife the care she needs. I will find a way to join with others to build a company to employ us all and save our homes and livelihoods. It will be hard, but since they brought my multi-great grandfather to these shores in chains for the crime of being a Scot and supporting the wrong absolute ruler, my family has found a way to do those things. Somehow, I and mine will find the way to protect and fend for ourselves. What you, sir, must do, is defend this country, and despite all that has been said in this new century, the threat to this country is not foreign fanatics. It is domestic fanatics. It is power misused, law abandoned. It is forgetting what makes this nation great. It is abandoning our principles.
I am not of your party. I am an independent. Yet, I voted for you, and worked for you and wept with joy to see a man with your background, both in heritage and in principle, elected President. The promise of it! The hope. Live up to that hope, sir. Give us back our Country. That, above all, is what we need. Then, sir, I will join you in working for health care and the economy and the other great works there are before us.
Jim Burrows, aka Brons - Vox Libertas
[In order to get the discussion moving I posted this at GetFISAright and Change.org
yesterday. Today, it is going to all versions of Vox Libertas except
DKos. It will follow there. Please join the discussion in any or all of
these. It is important that we get this right.]
As a member of "Get FISA Right", I find myself asking, "What does 'get it right' mean?" I don't have a definitive answer, but let me give a few thoughts as a basis for a discussion of the topic.
The Foreign Intelligence Surveillance Act (FISA) was originally passed in 1978 order to balance the legitimate need to spy on the nation's foreign enemies, with the Constitutional rights of her citizens, and especially to curb existing abuse. Technology has changed dramatically since it was written, and our enemies are different. Also, there has been a new round of abuse. All of these must be addressed.
To "get it right", let me suggest that we need:
- One law that covers all spying
- Require warrants when the US spies on
- Anyone in the US
- US persons (citizens and resident aliens) anywhere
- Allow the intelligence agencies to spy freely on foreigners oversees, even if the taps are in the US
- Require Executive, Judicial and Congressional oversight when protected and unprotected communications are entangled.
- Criminalize violation of the Constitution.
Item #4 is a knotty one. Since foreign and domestic traffic flows through the same "pipes" and is in the clear, and it is not easy to tell just from the content who the participants are, software that sorts what can legally be captured from what cannot can violate the Constitution and the law if it uses the wrong algorithm or has a bug. This is what the "targeting" and "minimization" procedures are all about. There must be diligent oversight, and it requires esoteric expertise. It requires nerds and Constitutional Law experts. And the jurisdiction to oversee.
#5 may seem superfluous, but is important. If your Constitutional rights are violated, you can sue, but only if you prove you have "standing". If the violation was done in secret, that can be hard to prove. If the criminal law is violated, the Department of Justice and Law Enforcement can and should investigate and prosecute.
That's my framework. What do you think?
For a longer discussion, let me recommend the following blogs from last summer (disclaimer: #3 is by me):
- David Kris's "A Guide to the New FISA Bill", Part I, Part II and Part III.
- Wes Walls' "Understanding Recent Changes to FISA -- A Visual Guide (Flowchart)"
- Jim Burrows' "I think I understand the FISA bill. Do I?" (at Blogspot. Also on Daily Kos, LiveJournal, MySpace, and Vox)
- Wes Walls' "FISA Revisited"
- Paul Russell's three-part "Figuring Out FISA"
So, I'm not an apologist for any of the current crop of politicians, and not at all well disposed towards anything that looks to weaken the rule of law, the Constitution or our civil liberties. All that being said, the brouhaha over FISA and the accusations of cowardice, lack of principles and political opportunism has started sounding a whole lot more like heat than the light of reason. A recent claim claim by Lawrence Lessig, a Civil Libertarian with a background in law made me stop and think.
People on the left, people like Glenn Greenwald, Jonathan Turley, Russ Feingold and Chris Dodd keep painting the recent FISA as a false compromise, a capitulation to Bush, and a blot on the fourth amendment. So why do Lessig and former Constitutional Law lecturer Obama say that it is important? Who is right?[Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.
Well either you can pick your authority figure and believe them—you pays your money and you takes your chances—or roll up your sleeves, wade into the bill and make your own decision. I never was the "argument from authority" type. So why should I pick one camp or the other?
I've been working on this posting for more than a week, and I think I have a handle on a line of reasoning that shows that the FISA amendment makes sense and may very well be a "Good Thing™". I don't find the argument compelling, but I think that it really deserves to be fully explicated, discussed and weighed, and as of yet, I think that I can respect and understand anyone who feels either that it outweighs the argument that FISA as a whole or as amended is so damaging to civil liberties and the rule of law that it outweighs the benefit or the other way around. I would really like to hear people who are passionate on both sides after they understand this reasoning.
Assumptions
There are a number of assumptions regarding the level of protection that should be afforded communications depending upon the people and jurisdictions involved. In terms of the three major combinations, the following breakdown seems to by the default assumption:- Spying on foreign/foreign communications is OK.
- Intercepting US/US communications requires a warrant or constitutional equivalent.
- Intercepting US/foreign communications is the purview of the FISA court and law
- The location where the spying is done is not as important as who is communicating.
1. Spying is OK
Some would argue that "spying is important" or even "spying is necessary". For the purposes of this analysis, all we need to assume is that it is legitimate for the foreign intelligence services to spy on foreigners when that is in keeping with their mission, our relationship to the foreign nations involved, so long as they do so in accordance with their regulations and charter. Such spying is conducted beyond the jurisdiction of the United States and beyond the guarantees of our constitution. Thus "foreign/foreign" communication, by which I mean communications between two people, neither of whom is a "US person", should not be controlled by US warrants or restricted by Constitutional rights. International laws may apply.It is certainly possible to disbelieve in spying, but we have done foreign spying for a very long time and the foreign intelligence services have always been unencumbered by the US courts and Constitution, so long as they were operating outside the US and the subjects were foreigners.
2. US/US requires a warrant
On the other hand, spying on Americans in America requires a court order. In essence, whenever the US Constitution is the ruling law, Warrants are required, otherwise it is "unreasonable search and seizure". The simplest version of this is communications between two US citizens, in the US, but resident aliens in the US are by precedent also protected by the Constitution. The term "US persons" is used in many laws as a shorthand for US citizens, US resident aliens and US corporations, since corporations are generally treated as "persons" in US law at present. For the purposes of FISA, "US person" is defined as follows:The requirement for warrants is a fundamental right in America, and the Constitution specifically limits the power of the government within its jurisdiction. There are certain questions about where the Constitution holds sway, but it at the very least applies within the sovereign jurisdiction of the United States and in all dealings between the US government and US citizens regardless of location.“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
3. FISA controls US/foreign surveillance
One may think, either as a civil libertarian or as a proponent of a
strong federal executive that FISA in principle is bad law, but since
1978 in order to balance the government's legitimate foreign
intelligence interests with the need for judicial oversight, FISA has
been the law. It's basic charter is to control spying that occurs
between US persons and foreign powers or agents. The simple Wikipedia
summary of FISA is pretty much in keeping with my understanding and
reads as follows:In short, if no US person is involved, even if the surveillance occurs within the US, assumption #1 applies, if a foreign agent power and US person are both involved, a FISA order is required. If not foreign agents or powers are involved, assumption #2 rules. FISA arose because the line between all-foreign and all-US can be blurry. FISA adds assumption #3 as the middle ground.The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrantless surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
4. Location is now unimportant
When the mindset behind FISA was formed, location was pretty much static. If you were spying on two foreigners who were outside the US, you pretty much could be assumed to be outside the US. If you were listening to the conversation between two Americans who were inside the US, then you were probably there, too.Today, this is less true. Main communications lines are often centered in the US and communications between foreign locations can often be picked up in the US. Similarly, Internal US communications may very well travel outside the US en route. It is generally assumed that this shouldn't change the situation vis a vis rights and Constitutional protections. The US government shouldn't be able to spy on Americans who are in America just because the act of spying occurs outside the US. Likewise, if traffic between known terrorists in Pakistan and agents in Spain happens to flow through the United States, the CIA should be as free to spy on it would have been if the bits/electrons had never crossed over our borders.
This is at the heart of the "FISA must be modernized to keep up with technology" argument that you often hear. And generally, I think that it is correct. The rights and protections should be determined primarily by who the actors are and who the subjects are, and secondarily where the subjects are located. Anything done in the US or to Americans must take the Constitution into account. From an ethical perspective we might like to say that, just for instance, all people are created equal and are naturally endowed with certain unalienable rights, and so the US Constitution should protect the rights of all of humanity everywhere. There are,however, myriad practical and political problems with that view.
What is "private"?
Beyond jurisdiction,
the other thing that determines the legality of information gathering
is the question of privacy. Gathering public information is merely
being well informed. Gathering private information is spying, or at
least searching. And so the notion of an "expectation of privacy"
enters the picture.In the purely telephonic days, the devices that were used in this area were "pen registers" and "trap and trace devices". Pen registers recorded the numbers that a phone dialed. Trap and trace devices could determine and record the numbers from which incoming calls originated. These concepts have been adapted to digital messaging and networking. Thus, capturing and recording the addresses that computer traffic flows through is less protected than examining and recording the content of the messages.
This brings us to the illustration of the post card that accompanies this article. Most Internet traffic isn't encrypted, and the address and data portion of a network packet are the same sort of things. In many ways, it is as if mail was accomplished with postcards rather than envelops. Imagine if you will, that the law applied to the information on a postcard the way it does to the Internet or phone call. Without a warrant, it is OK to capture and record the address and return address and the postmark information, but not the text.
Further, let us apply our assumptions above. If the sender and recipient are foreign nationals, operating outside the US, then it is OK for the intelligence services to read the whole postcard, but if either the sender or recipient is a "United States-person", then a warrant or other authorization is required. One can envision a peculiar device that covers the left half of the card or the handwriting on the left, exposing the printed return address, scans the address and postmark and determines the identity and location of the sender and recipient, compares that with suitable records and makes the decision as to whether the hidden portion can lawfully be photographed and recorded.
Mr. Kringle is a native of the North Pole, territory claimed by the Russians. Records show that the postcard arrived on a plane from Canada, but the postmark shows that before that it was mailed within the US. Young Mr. Dough is a US-person, possibly a US citizen. Before such phrases as "keeping a little list" and "fellow travelers" can be used as evidence that Mr. Kringle is a "Red", Mr Dough's rights must be accounted for.
My fanciful steam punk postcard scanner is actually not all that fanciful. It is rather analogous to the sort of software you would need to use in order to capture email. Email messages are just streams of bytes organized into packets and messages according to a whole hierarchy of standards and protocols, and the way that the addresses are encoded is not particularly different from the way that the message content is. In the outer couple of protocol layers,IP addresses are encoded in binary, but the to and from fields of an email message are encoded in exactly the same sort of human readable text as the body of the message. The most simple minded search programs that you could use to search an email stream could readily scan unprotected addresses and protected contents with equal ease.
To implement the intent of our laws, that foreign/foreign messages can be scanned, searched and recorded by our intelligence services, without a warrant or the involvement of the courts, but insure that US/US email requires an ordinary warrant and US/foreign-agent email can be handled in accordance with the FISA law, a moderately intelligent and carefully crafted program needs to be used.
Basically such a device would consist of a "pen register" to determine who the message addressed to and a "trap and trace device" to determine where it came from. An analyst or analytical engine of some sort then determines if at least one "US person" is involved, and if any foreign agents are involved. If both are "United States Persons", then a list of applicable warrants determines if the contents can be saved or analyzed. If no US person is involved, then the message can be freely analyzed. If a mixture, then a check for the FISA process must be made.
Any system for scanning the Internet trunk feeds that we have access must be very carefully controlled. The software wants to be carefully designed and implemented, and the people operating and maintaining it must be carefully vetted. The policies and procedures for authorizing and monitoring its use must be carefully written and and enforced with appropriate oversight.
Personally, if I were with the federal government, my approach would be to split the trunk and send the duplicate feed into a highly secured room, control who had access to that room, staff it only with people who had serious background checks, make sure there was a field manual and oversight. Given their charter, the combination of technology and surveillance would suggest that the NSA be the agency chartered to handle this. I'm thinking it would look a whole lot like the whistle-blower described. The question is can the feds be trusted? Given my dedication to civil liberties and my view on the lawless behavior of the current administration, I'd have to say, no, not in the current instant. But that doesn't mean that no US Attorney General and no National Security Adviser can be trusted. It just means that we know that they can't all be. We have illustrative examples.
Now a bunch of Senators, Representatives and the odd Presidential candidate probably have more faith in the notion that the federal government can be structured and run in a way that is trustworthy. In the end, most of us trust ourselves and some fraction of folks like us. So, with that in mind, how does the recently passed FISA amendment stand up?
What is the new FISA?
While working on this posting I've read Title I of the recently passed FISA amendment bill a couple of times and tried to chart out the differences. While doing so, I came across someone who has done the same thing and published his completed flow chart of the original and amended FISA, skipping the short-live Protect America Act. Let's have a look at his analysis along with the actual text. The original article can be found on Wes Walls' blog Ketchup and Caviar. Here are the two flowcharts:
I would have worded the change differently. What I would note is that the upper middle section of the flowchart changes from being based on location (the one rounded corner box and the three red lines) to a simpler pair of boxes based on whether any US person is involved. As a result, there is now a relatively simple three way decision regarding foreign surveillance. (Note that there is a fourth case, the "normal" one: If no foreign agents are involved, surveillance requires an ordinary warrant.)"The focus of change is the bolded red line marked “U.S. or non-U.S. Persons Located Inside or Outside the U.S.” Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the [second] chart. What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted."
- If any US person is involved or the communications is domestic, a FISA warrant is needed
- If no US person is involved, the communications is email or over cables, a special "Certification of Mass Acquisition" is available.
- Otherwise, no warrant is needed when no US person is involved.
And that brings us to the blue box in the bottom right. Here's what Wes has there:
- Is the target reasonably believed to be located outside the United States?
- Is the purpose of the targeting to acquire foreign intelligence information?
- In the particular case, will "minimization procedures" adequately balance the privacy of US citizens against foreign intelligence needs?
- Will there be a good-faith effort to avoid domestic targets and domestic communications? Will other limitations be observed?
Questions #1 and #2 basically reiterate the decisions that got us through the flow chart to Mass Acquisition. The new act's jurisdiction has gone from searches involving a "foreign power or agent thereof" to focusing on non-US persons outside the US (question #1). This is actually a good thing for the civil liberties of US persons, since as previously defined, a foreign agent could be a US person working for a foreign power. The question now is just "US person or non-US person". Without the struck out text, question #2 is basically a restatement of part of the logic that got us to this section. It becomes "Is the purpose of targeting [foreign communications between non-US persons believed to be outside the US by capturing traffic within the US] to target foreign intelligence information?"
With Question #3 we get to the heart of the issue, the "minimization procedures". These are spelled out in the bill in section 702 e, as follows (via OpenCongress):
Section "301(4)", mentioned in #1 refers to physical surveillance, so the relevant section is 101(h), as follows (via Thomas):(e) Minimization Procedures-
- REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
- JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).
In essence, this is the requirements document for the pen register, trap and trace device and analytical engine device. Where as question #3 is "will the procedures be adequate?", question #4 is "will a good-faith effort be made to see that they are applied?" Two changes in the law would seem to attempt to speak to this question.(h) “Minimization procedures”, with respect to electronic surveillance, means—
- specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
- procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
- notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
- notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
First, throughout the document, things that used to be the purview of the Attorney General or "the Attorney General or the National Security Advisor" are now "the Attorney General and the National Security Advisor" or at least "the Attorney General with the advice of the National Security Advisor". This doesn't guarantee the good intentions or competence of the two people, but it at least requires the collusion of two Senate approved officials, and one can see why the Senators might want that.
Second, the bill explicitly states in a number of places that the actions taken "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." This may seem frivolous. After all, all US laws must be consistent with the Constitution, and no federal action may legitimately violate Constitutionally protected rights. However, the inclusion of this specific proviso in the FISA law means that violations of the 4th amendment in carrying out these procedures is not only a violation of Constitutionally protected rights, with all that entails, but a federal crime under this statute as well. This provides an additional means of prosecution.
It remains to be seen whether these changes will have the beneficial effects that the Senators and others who support it hope, but I begin to see why they might think that this is an important improvement to the FISA laws. It
- brings all foreign surveillance under this law
- aligns the law with the jurisdiction and protections of the Constitution
- requires explicit procedures be defined for winnowing protected US communications from unprotected foreign communications
- makes the AG and NSA jointly responsible
- requires review
- makes explicit the criminal nature of stepping outside this law or the Constitution
- increases senate oversight
- makes explicit the grounds for criminal proceedings
Making it a crime doesn't stop it, but it does give us a handle for dealing with it.(b) Limitations- An acquisition authorized under subsection (a)--
- may not intentionally target any person known at the time of acquisition to be located in the United States;
- may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
- may not intentionally target a United States person reasonably believed to be located outside the United States;
- may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
- shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
In the end, given the need to balance the Constitutional protections of US persons and anyone in the US with the need to allow the foreign intelligence services to spy on foreigners overseas, and the facts of the mingling of foreign and domestic traffic and that email is more like postcards than letters in envelopes, I am left wondering what alternative there is other than a law something like this one.
Today the rule of law, the checks and balances and the rights reserved in the Bill of Rights were damaged as the FISA act was once again altered and retroactive immunity was authorized for law breaking telecoms. A lot has been written about this. I will not add to that.
Instead, I thought I would point out a pair of quiet revolutions that took place over the last couple of years that got very little coverage. I do so for two reasons. First it is worth noting that not all of the battles for civil liberties in the last couple of years have been lost, and second, it is important to realize that major changes both for good and ill can happen with virtually no one noticing.
The day after the Military Commissions Act was passed and habeas corpus damaged, a second important protection was virtually wiped away—Posse Comitatus. If the weakening of habeas corpus dredges up images of King John, Runnymede, and the Magna Carta, Posse Comitatus should put us in mind of Julius Caesar and the crossing of the Rubicon. The Posse Comitatus Act of 1878 basically forbids the use of the US military or the National Guard under federal control within the United States. It keeps the government from using the miltary on its own citizens. It is essentially the modern version of the Roman law that forbade the legions from crossing the Rubicon into Italy proper.
The Insurrection Act of 1807, on the other hand, authorizes the use of the military and the federalized militia to deal with lawlessness, insurrection and rebellion within the country. The tension between the two acts defines the ways in which the President may legitimately use the military domestically.
The expansion of the Insurrection act came on the "John Warner National Defense Authorization Act for Fiscal Year 2007". Section 1076 of that law rewrote Section 333 of title 10 of the U.S. Code, the Insurrection Act. I wrote a blog posting dealing with the changes a year ago, and also produced a page showing the changes in detail. To summarize quickly, the circumstances under which the President could use the military within the US was expanded from insurrection and rebellion to include "natural disasters, public health emergencies and terrorism", and most alarmingly of all "other circumstances" and left the determination of whether these circumstance pertained to the President.
In short, under the new law, if the President determined that a situation of domestic violence, conspiracy or "unlawful combination" has hindered or obstructed the execution of the laws, and that this is one of those "other circumstances cited in the law, he may federalize the National Guard and use it and the armed forces. This basically made the power to declare martial law and arbitrary power of the President.
The good news is that the "National Defense Authorization Act for Fiscal Year 2008" (HR 4986) which was passed and signed by the President in late January completely undid these changes, and the Insurrection Act and Posse Comitatus have returned to their original balance. The bad news is that it had to be done on the QT. Nearly a year before HR 4986 was passed, Senator Leahy, with the support of Kit Bond, Senator Hagel and 10 Democratic Senators introduces S. 513, a bill that would have done the same thing. It died in committee. Only by burying it in the defense authorization act could they sneak it through.
Civil Libertarians would have celebrated this victory except that it went unheralded, and in fact if you look for news stories about the change which was signed at the end of January, you will find that many are dated at the end of April.
Those of you who paid attention to the Senate debate over the last couple of days on the FISA and telecom immunity legislation will recognize the names of the senators who were willing to stand up for Posse, as sponsors or cosponsors of S 513:
- Sen. Patrick Leahy [D-VT]
- Sen. Christopher Bond [R-MO]
- Sen. Sherrod Brown [D-OH]
- Sen. Robert Byrd [D-WV]
- Sen. Maria Cantwell [D-WA]
- Sen. Thomas Carper [D-DE]
- Sen. Robert Casey [D-PA]
- Sen. Russell Feingold [D-WI]
- Sen. Charles Hagel [R-NE]
- Sen. Mary Landrieu [D-LA]
- Sen. Blanche Lincoln [D-AR]
- Sen. Ken Salazar [D-CO]
- Sen. Ron Wyden [D-OR]
I'm afraid I cannot say what nameless aide put the language into HR 4986. Such is the reality of modern stealth legislation.
We must continue to fight the good fight, just as the three or four dozen senators who voted today to support civil liberties did, just as the sponsors of S 513 did, and at times quietly as the author of HR 4986 § 1068.
As ever, don't believe me.
Research for yourself.
Be a free voice.
Cry for Freedom
Senator Dodd,
Thank you, Senator. Thank you for doing what so few have these last few years: standing up for the Rule of Law. The Rule of Law doesn't have a big office on K Street, nor does it result in much juicy gossip. And though, for a while, it seemed to have become a partisan issue, with the Republicans working against it out of loyalty to an Imperial President and Democrats speaking up for it to show their opposition to him, we see now that it has few partisans, that few will man the barricades for it.
And yet there you stand, not in Iowa or New Hampshire, but on the floor of the Senate, speaking for the Rule of Law, the principle that if you violate the law, commit crimes, you must face justice in a court of law. There you stand, for the principle that the law of the land and not the whims and dictates of the Commander in Chief, the Sole Supervisor of the Unitary Executive, the man with "Inherent Executive Authority" that goes back to the Divine Right of Kings, is what rules us. There you stand.
And with you stand the ghosts of all our forefathers who gave their lives for the precious documents that enshrine that principle. How has it come to this that so few of our supposed leaders, our representatives, our senior statesmen stand by you? How is it that Senator Reid can give lip service to the principle, but bring to the floor the version of the bill that casts it aside, yet again? How can he not honor your "hold" and yet honor Senator Graham's that protects the power to torture from the application of the Army's Field Manual?
We hear much about supporting our troops. How does it support them to throw aside the practices of the Field Manual which prescribes principles of international law that we expect the world to apply to them. How does it support our troops to set aside the Uniform Code of Military Justice in favor of secretive ad hoc "Tribunals"? How does it serve them to tear down the principles that we insisted on at Nuremberg, that the rule of law and not of vengeance and power of the victor to do what he likes with the vanquished? How does it honor our dead to set aside the Constitution, Federal statutes and those of the several States, the laws and principles they fought and died for?
How have we come to the point where the ability to torture gets more respect from the leader of the Senate, the supposed head of the Opposition, than does the defense of the principle that those who break the law must face Justice in a Court of Law? It seems surreal. Routinely these days you hear people invoke Orwell's 1984, and less often Brave New World. Occasionally, Animal Farm is suggested as shedding light on where we are, or wry comments are made about the subtitle, "How I learned to stop worrying and love the bomb".
But this week I feel like I'm caught in the President's Analyst. You may remember the film that satirized spy thrillers and conspiracy theories, by making the ultimate evil force that threatened our country that villain that everyone could hate: TPC -- The Phone Company. I feel like Dr. Sydney Schaefer, the titular President's Analyst who becomes convinced that everyone is spying on him, that all the spy agencies, and at their heart The Phone Company are out to get him. Back in 1967 we laughed at the film. It was an absurdist spoof. Today we seem on the verge of making it real, of making The Phone Company immune to prosecution, immune to civil suit, immune to inquiry as they secretively spy on us at the whim of a President whose lawyers tell him he is above the law or perhaps he IS the Law..
But, there you are. There you stand. Son of an FBI agent, Senator and Nuremberg prosecutor. Dark horse in a Presidential race where one freshman senator criticizes another for lack of experience. And while they thump their tubs, you stand and speak and act for the Rule of Law. Thank you Senator. Thank you from the bottom of my heart. As the descendant of a Scot who came to this country in chains, condemned to indentured servitude for standing against a self proclaimed "Lord Protector", only to win his freedom and settle in your home state, I thank you.
Thank you for remembering how hard fought our freedoms and privileges are in this country, thank you for standing for the the Rule of Law. It's not glamorous. It will not win you friends. It probably does you little good on the campaign trail. It will not endear you to K Street or to the leaders of your party. But thank you, and may Providence bless you.
Jim Burrows
Vox Libertas
A free voice
The Democrats are failing us, as the recent FISA Court vote clearly demonstrates. They are not protecting our Civil Liberties, they are cowering before the political threats of a "politically weak" president and worst of all they are allowing him to arrogate more and more power into the Presidency. We need to make them understand that we want political leaders who will stand up for the People, our Liberties and the Republic.
Glenn Greenwald has written (here, here, here, here, here, and here) and spoken (here and here) extensively recently about how the Democrat-led Congress meekly deferred to the President and hastily revised the FISA laws, greatly expanding the government's power to secretly and without judicial or Congressional review tap any telephone or email communications that can be "reasonably believed" to be outside the US. Many others have taken up the cry and all of the Democratic Presidential hopefuls have distanced themselves from the action.
Most of the writing on this topic has spoken about the great harm done to our Civil Liberties, but as John Dean pointed out, in many ways, that is not the most important and dangerous aspect of the incident. Dean wrote in FindLaw's on-line journal, The Writ, an article entitled "The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well". In it he wrote,
The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.
Greenwald and numerous others have written of the FISA fiasco, that congress capitulated to the "weakest President" in recent history. Witness:
It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can "demand" that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply.
-- Glenn Greenwald in Salon.com
Once again, the weakest president in the history of this country walks away a WINNER!!! Winning BIG TIME!-- PinkytheBrain in a comment in Crooks and Liars
I do not understand how "Total Capitulation", jumping at the demand of the politcally weakest President in history, and craven betrayal of principle makes the Democrats "appear stronger".-- LJean a comment in Balkinization
But if 41 Democrats lack the courage to stand up to the weakest president in decades at a time when every indicator they trust—polls, focus groups, pundits—is saying no to this man, when will they find the strength to stand?
By "weakest", of course, they mean that the President has extremely little support among the People, and after all the People are the source of power in our country and under our constitution. And so, lacking popular support the President should be weak, but in two very great senses, he is not. And therein lies the rub.
First of all, as they point out, the Democrats routinely, repeatably and predictably capitulate and give him pretty much anything he asks for. And secondly, what he has asked for is Power, and they have given it to him. They heap it on him and when they don't he just takes it and they stand by.
This President, this "weak" President has the authority to federalize the National Guard and deploy the US military within the borders of the US when, and I quote the new text of the insurrection act "as a result of ..., or other condition ... the President determines that ... domestic violence has occurred .. and such violence ... obstructs the execution of the laws ... or impedes the course of justice". It used to be that he could do so only to put down violent rebellion and insurgency, or to repel invasion. Now, natural disaster, terrorism or the unspecified "other condition" is sufficient. He used to be able to order insurgents to disperse, now he can issue a proclamation ordering "insurgents or those obstructing the enforcement of the laws to disperse". If he thinks peaceful protesters "obstruct enforcement", he can use the military to disperse them, once he has invoked this act. No other President has had this power.
With the FISA rewrite, it is not the Court but Attorney General Alberto Gonzales who oversees warrantless wiretaps. The same Alberto Gonzales who could not answer an opinion question asked of him in Congressional hearings without taking it back to "his principal"; who believes that the President as the sole supervisor of the "unitary executive" makes all decisions.
No, in terms of legal power, granted him and abdicated to him by the Congress, and his reconstituted Supreme Court, the current President has more pure executive and governmental power than any previous President. God help us if he were politically powerful as well.
So what are we to do about it? Well, we can turn out any Congressman who doesn't stand up to him. We can replace them with people who understand that their mandate is to protect our liberties, our constitutional government and the Republic. But what if there aren't enough. California has no Senator who voted against FISA. Only one did in Massachusetts. These are the supposed extreme liberal states. What if there aren't any Democrats with backbone in a senatorial or congressional primary? Well, I suppose you could vote for the John Bircher, or the Libertarian. But still, what if there aren't enough?
Well, at least, wrote people last weekend, none of the Democratic Presidential candidates voted for the FISA amendment. Perhaps the answer is to vote for a strong Democratic President who will whip Congress into shape and... wait a minute... Isn't that proposing that we turn to a Strong Presidential candidate to protect the Republic by weakening the Presidency? Is there, perhaps, just perhaps, a teeny little issue hiding in there?
This, boys and girls, ladies and gentlemen, is not going to be easy. The reason that power corrupts is that good people are tempted to use it--just for now--when it falls into their hands, for good purposes, and there are always good purposes that need power. And so power is seldom surrendered. The time to stop this isn't in the next election, it is now!
The FISA bill was only a temporary stopgap, with a 6-month sunset clause. Speaker Pelosi has sent a letter saying that when Congress returns next month, they'll need to reexamine it. But President Bush has also said that it needs to be revisited. It is, he feels only a first step, and the whole change needs to be made. Congress has to grant him and the executive branch, which as the sole supervisor of the unitary executive, means him, more power, more immunity from oversight, more protection from prosecution for him and those who go along with him, inside or outside the law.
The time to act is now. Make sure your voice, your free voice for so long as it remains so, is heard. Demand that your congressmen stand up for the Republic and against the concentration of ever more power into the President's hands.
Vox Libertas
A Free Voice, that cries Freedom!
