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article imageOp-Ed: Is the FISA court process authorizing surveillance even legal?

By Ken Hanly     Jun 20, 2013 in Internet
Washington - Ever since the Guardian newspaper began publishing stories about the National Security Agency in the US and its massive spying apparatus, there have been many attempts by media and US officials to show the program is legal and closely monitored.
Glenn Greenwald shows that many of the claims used in the defense are either exaggerated or plain false. President Obama himself noted that no one is actually listening in to your telephone calls. This is true enough, at least on the basis of the FISA court authorizations since it is metadata that is collected, but this data could provide information about a person such as where they phone from, what number they are phoning etc. Obama also said that the program is "fully overseen" by "the FISA court, a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them." Obama went on: "What I can say unequivocally is that if you are a US person, the NSA cannot listen to your telephone calls … by law and by rule, and unless they … go to a court, and obtain a warrant, and seek probable cause, the same way it's always been, the same way when we were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause."
Similar points are made by the Republican chair of the House Intelligence Committee Mike Rogers. When it involves Americans, the standard line is that warrants are required to actually monitor calls. Journalists such as Tom Friedman repeat the refrain claiming that before they can look at the content of calls and emails they need to go to a judge and get a warrant. These defenses are often preludes to attempts to show that Edward Snowden is not a genuine whistleblower but a traitor who is putting people's lives in danger and ought to be charged.
Greenwald's long article is a detailed account of exactly why the talk about safeguards and legality of the program is misleading and sometimes false. The claim that the process is legal is itself questionable. The administration has refused to allow a judicial decision on that issue because of secrecy concerns. In spite of the constant claims about legality the administration refuses to test that. Greenwald points out: Contrary to the claims by NSA defenders that the surveillance being conducted is legal, the Obama DOJ has repeatedly thwarted any efforts to obtain judicial rulings on whether this law is consistent with the Fourth Amendment or otherwise legal. Every time a lawsuit is brought contesting the legality of intercepting Americans' communications without warrants, the Obama DOJ raises claims of secrecy, standing and immunity to prevent any such determination from being made.
The original FISA law, enacted in 1978, was passed to make sure that the US government would not monitor communications of Americans without first obtaining an individualized warrant to do so that demonstrated probable cause, evidence that the person was a terrorist or foreign agent. This is the law the Bush administration violated in late 2001. Greenwald claims that instead of punishing the violations, congress, with bipartisan support, passed the FISA Amendments Act of 2008 which diluted the original law and actually made legal much of what Bush had done. These amendments were just renewed last year.
The misleading part in most defenses of the surveillance is the claim that the emails and phone calls of Americans are not monitored. However, if an American communicates with a foreign national who is targeted the phone calls and emails can be accessed without a warrant according to Greenwald.
The point that Greenwald makes is not new but was explained by Yale Law professor Jack Balkin in 2009:"The Fisa Amendments Act of 2008, effectively gives the President - now President Obama - the authority to run surveillance programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is because New Fisa no longer requires individualized targets in all surveillance programs. Some programs may be 'vacuum cleaner' programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no US person is directly targeted as the object of the program. . . . These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda." As Balkin explained, Congress gave the president authorization to do what had previously been done illegally.
Defenders of the surveillance talk of this interception of American communications being "incidental" or even "inadvertent". However as Greenwald points out that is simply untrue. Often the aim is to find out about an American without a warrant! In a hearing in 2006 Michael Hayden pointed out that some communications "with one end in the United States" are the ones "that are most important to us". There is much more in the Greenwald article but this report is already becoming lengthy. Greenwald shows also that the vaunted oversight by the FISA court is mostly empty. I recommend reading the entire article.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
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