David Kirkpatrick

October 20, 2009

Why FISA never needed reform in the first place

I’ve already done a post today on this excellent article by Julian Sanchez on the Obama administration and how it’s retaining some of the Bush administration’s overreaching tools for use in the “global war on terror.” So far the Obama administration has been a disappointment in not rolling back the beating U.S. civil liberties took in the Bush administration’s  panicked response to 9/11.

And as it turns out — and that I’ve argued repeatedly — the tools to fight international terrorists were firmly in place before 9/11, they were just implemented with Keystone Kop level competence.

From the second link:

The FISA Amendments Act is the successor to an even broader bill called the Protect America Act, which similarly gave the attorney general and director of national intelligence extraordinary power to authorize sweeping interception of Americans’ international communications. It was hastily passed in 2007 amid claims that the secret FISA Court had issued a ruling that prevented investigators from intercepting wholly foreign communications that traveled across US wires. Former Director of National Intelligence Michael McConnell even claimed that FISA’s restrictions had rendered it impossible to immediately eavesdrop on Iraqi insurgents who had captured several American soldiers. The New York Post quoted tearful parents of the captured men expressing their horror at the situation and a senior Congressional staffer who alleged that “the intelligence community was forced to abandon our soldiers because of the law.”

Yet as a Justice Department official later admitted, the FISA law clearly placed no such broad restriction on foreign wire communications passing through the United States; rather, there had been a far more narrow problem involving e-mails for which the recipient’s location could not be determined. And as James Bamford explained in his essential 2008 book, The Shadow Factory, the delay in getting wiretaps running on the suspected kidnappers was the result of a series of missteps at the Justice Department, not the limits of FISA — no surprise, since even when FISA does require a warrant, surveillance may begin immediately in emergencies if a warrant is sought later. (The suspected kidnappers, by the way, turned out not to have been the actual kidnappers.) Yet on the basis of such claims, a panicked Congress signed off on almost limitless authority to vacuum up international communications — authority that we already know has resulted in systematic “overcollection” of purely domestic conversations, and even resulted in the interception of former President Bill Clinton’s e-mails.

Rhetoric v. reality in the Obama White House

Cato and Reason‘s Julian Sanchez has a great piece on the disconnect between what the Obama administration does, and what it says, in restoring balance to D.C. and ridding our government of some of the Bush administration’s overreach and blatant disregard for civil liberties and personal freedom.

To be fair Obama has been in office a total of nine months with a very full plate, and his administration may well be taking a long view in meeting some of these policy goals. If so, that’s great. In the meantime his feet should be kept to the fire on these issues that led many independent voters to pull the lever for him last year.

From the link:

We know the rules by now, the strange conventions and stilted Kabuki scripts that govern our cartoon facsimile of a national security debate. The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place. Conservatives hit the panic button on the right-wing noise machine anyway, keeping the delicate ecosystem in balance by creating the false impression that something has changed. We’ve watched the formula play out with Guantánamo Bay, torture prosecutions and the invocation of “state secrets.” We appear to be on the verge of doing the same with national security surveillance.

Update — Here’s another post on this article.