The NYT's predictable revelation: new FISA law enabled massive abuses

The 2008 Democratic Congress gutted eavesdropping safeguards and thus made spying abuses inevitable.

Published April 16, 2009 9:57AM (EDT)

(updated below -Update II - Update III)

In The New York Times last night, James Risen and Eric Lichtblau -- the reporters who won the Pulitzer Prize for informing the nation in 2005 that the NSA was illegally spying on Americans on the orders of George Bush, a revelation that produced no consequences other than the 2008 Democratic Congress' legalizing most of those activities and retroactively protecting the wrongdoers -- passed on leaked revelations of brand new NSA domestic spying abuses, ones enabled by the 2008 FISA law.  The article reports that the spying abuses are "significant and systemic"; involve improper interception of "significant amounts" of the emails and telephone calls of Americans, including purely domestic communications; and that, under Bush (prior to the new FISA law), the NSA tried to eavesdrop with no warrants on a member of Congress traveling to the Middle East.  The sources for the article report that "the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers."

In reacting to these leaks, I share Digby's sentiments entirely:  "It was so inevitable that I can't even find the energy to get worked up about it."  I also don't want this news to distract from what ought to be the singular big story of the day -- namely, whether Obama will release the 3 key Bush DOJ memos that legalized specific torture techniques (as Andrew Sullivan correctly says, a failure of full disclosure "will betray all [] who supported him to restore the rule of law").  Nonetheless, there are some critical facts that need to be highlighted in order to prevent distortion of the meaning of the Risen/Lichtblau article.

These widespread eavesdropping abuses enabled by the 2008 FISA bill -- a bill passed with the support of Barack Obama along with the entire top Democratic leadership in the House, including Nancy Pelosi and Steny Hoyer, and substantial numbers of Democratic Senators -- aren't a bug in that bill, but rather, were one of the central features of it.  Everyone knew that the FISA bill which Congressional Democrats passed -- and which George Bush and Dick Cheney celebrated -- would enable these surveillance abuses.  That was the purpose of the law:  to gut the safeguards in place since the 1978 passage of FISA, destroy the crux of the oversight regime over executive surveillance of Americans, and enable and empower unchecked government spying activities.  This was not an unintended and unforeseeable consequence of that bill.  To the contrary, it was crystal clear that by gutting FISA's safeguards, the Democratic Congress was making these abuses inevitable.

Opponents of this bill were warning that exactly these abuses would occur if the bill was passed.  Here's how I summarized some of the opposition to the FISA bill on June 21, 2008 -- just a couple of days before its passage:

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power." Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.

Abolishing eavesdropping safeguards was the central purpose of the FISA bill.  It was why Dick Cheney and Michael McConnell were demanding its passage.  Yale Law Professor Jack Balkin at the time wrote:

Most Americans don't realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush. President Obama will like having Congress authorize these new powers. He'll like it just fine. People aren't paying as much attention to this part of the bill. But they should, because it will define the law of surveillance going forward. It is where your civil liberties will be defined for the next decade.

But key Democrats [and, needless to say, the GOP minority, which (other than Ron Paul) unanimously supported the bill] ran around spouting pure propaganda, telling the public that they were supporting this new FISA bill because it would safeguard and even enhance civil liberties protections

Here is what was said about the bill by the Democrats' House Majority Leader -- who, along with Dick Cheney and Jay Rockefeller, was the key force behind its passage:   "In an interview with Politico on Monday, [Steny] Hoyer called the FISA legislation a 'significant victory' for the Democratic Party — one that neutralized an issue Republicans might have been able to use against Democrats in November while still, in his view, protecting the civil liberties of American citizens."

Hoyer's claims were echoed immediately by Barack Obama when he announced that he, too, would support the FISA "revisions."  Obama said:

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people . . .

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.

And here is the excuse which Time Magazine offered for the Democrats as part of an article mindlessly repeating what was told to them by House Speaker Nancy Pelosi:

What motivated Pelosi and the Democrats to incur the wrath of their liberal base and allow one of the Administration's most controversial anti-terror policies to be extended? A mix of politics, pragmatism and some significant concessions. . . .

Stonewalling the Administration and letting the surveillance powers expire could have cost the Democrats swing seats they won in 2006 as well as new ones they have a chance to steal from Republicans this November. "For any Republican-leaning district this would have been a huge issue," says a top Pelosi aide, who estimates that as many as 10 competitive races could have been affected by it.

The Washington Post Editorial Board -- one of our nation's leading watchdogs over abuses of government power (just ask them and they'll tell you that) -- issued a ringing endorsement of the new bill:

CONGRESSIONAL leaders of both parties should be commended for drafting legislation that brings the country's surveillance laws into the 21st century while protecting civil liberties and preserving important national security prerogatives. The bill is scheduled to be voted on today in the House, and it deserves to pass.

Worst of all, Obama surrogates  -- such as Cass SunsteinGreg Craig and Nancy Soderberg -- were dispatched to tell people with a straight face that the FISA-gutting bill strengthened civil liberties protections and improved eavesdropping oversight.  Needless to say, hordes of trusting Obama supporters immediately seized on that blatantly false assertion ("the bill Obama supports strengthens oversight!") and began reciting it in defense of their candidate.  Now, a mere nine months later, The New York Times reports that the bill enabled and caused massive abuses of the NSA's eavesdropping powers.  Imagine that:  if you gut even the minimal oversight provisions designed to check presidential eavesdropping abuses, abuses will not (as Democrats and Obama surrogates claimed) decrease, but will actually increase substantially.  Who could have guessed?

Several other points to note about these new revelations:

(1) The abuses which Risen and Lichtblau report last night are far from comprehensive.  These are just isolated slivers that they are able to describe as a result of individuals leaking portions of what they know.  Indeed, while the article emphasizes that the abuses are "significant and systemic" and "went beyond the broad legal limits," there are exceedingly few specifics in their story detailing exactly what the abuses were.  In other words, most of the information about the NSA's abuses remain concealed.  We have learned only a small fraction of what took place.

(2) Note the wall of extreme secrecy behind which our Government operates.  According to the article, various officials learned of the NSA abuses and then secretly told some members of Congress about them, and those individuals have been secretly discussing what should be done.  The idea that the Government or Congress should inform the public about the massive surveillance abuses doesn't seem to have occurred to anyone other than the whistleblowers who leaked what they knew to The New York Times.

(3) Since being elected President, Barack Obama has done everything in his power to block judicial proceedings that would examine allegations that the NSA has been abusing its eavesdropping powers and illegally intercepting the telephone and email communications of Americans.  Put another way, Obama -- using radical claims of presidential powers of secrecy -- has been preventing disclosure of the very abuses disclosed by this article and preventing legal scrutiny, all by claiming that even George Bush's illegal NSA spying programs are "state secrets" that courts must not adjudicate.  That's what the "state secrets" controversy is about -- Obama demanding that courts be barred from examining or ruling on any of these abuses and imposing consequences, based on his claim that these activities are so secret that they must never see the light of day.

(4) In addition to destroying most of the FISA oversight framework, the 2008 bill also sought to terminate all lawsuits that were brought against telecoms for eavesdropping abuses.  Those lawsuits would have examined and led to judicial rulings on past NSA abuses, but the Democratic Congress and the Bush White House instead retroactively immunized the lawbreaking telecoms and thus ensured that there would be no consequences for any of it.

It's true that the Times article claims that these abuses were uncovered as part of the DOJ's preparation of the semi-annual report which the 2008 FISA law requires be submitted in secret to the FISA court.  And, once they knew that the Times had learned of and was preparing to write about these abuses, Obama officials claimed in response that the abuses are being corrected and that eavesdropping activities are now in compliance with the safeguards of the law.  The problem, however, is that "the law" -- thanks to the Democratic Congress -- now has exceedingly few safeguards in it.  It allows massive domestic spying without meaningful oversight, and renders these eavesdropping abuses inevitable.  That was true in June, 2008 when the FISA-gutting law was passed, and it is just as true now.

* * * * *

I'll be on Democracy Now this morning at roughly 8:00 a.m. EST to discuss this matter and today's deadline for disclosure of the OLC torture memos.  Live video and local listings are here.  A transcript and video of the segment should be posted shortly.


UPDATE:   Along with NSA whistleblower Thomas Tamm, I was on Democracy Now this morning talking about these matters.  The segment can be seen here:


UDPATE II:  Don't worry:  current Senate Intelligence Chair Dianne Feinstein -- who, after Jay Rockefeller, did as much as any Senator to cause a loosening of eavesdropping safeguards -- said today that she takes these revelations oh-so-very-seriously and vows to look into them.  Maybe next we can have Goldman Sachs lead an investigation into the causes of the financial collapse and what the best solutions are (actually, we somewhat have that already).  The U.S. Government is increasingly hard to satirize.


UPDATE III:  Sen. Russ Feingold issued this statement today:

Since 2001, I have spent a lot of time in the Intelligence Committee, the Judiciary Committee, and on the floor of the Senate bringing attention to both the possible and actual effects of legislation that has dangerously expanded the power of the executive branch to spy on innocent Americans. Despite these efforts, Congress insisted on enacting several measures including the USA PATRIOT Act, the Protect America Act, and the FISA Amendments Act, embarking on a tragic retreat from the principles that had governed the sensitive area of government surveillance for the previous three decades. Congress must get to work fixing these laws that have eroded the privacy and civil liberties of law-abiding citizens. In addition, the administration should declassify certain aspects of how these authorities have been used so that the American people can better understand their scope and impact.

All of those bills Feingold lists that enabled these abuses were enacted with major Democratic support, despite the fact that opponents repeatedly made clear that exactly these abuses would happen. 

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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