Thursday, February 28, 2013

Warrantless Wiretapping,

                                  Warrantless Wiretapping Wins Again

By Michelle Richardson, Legislative Counsel, ACLU Washington Legislative Office at 12:23pm
It’s official.  The Senate voted 72-23 last week to extend the FISA Amendments Act another five years, which President Obama signed Sunday. Unfortunately, the public discussion of George W. Bush’s warrantless wiretapping program may soon fade back into the shadows.
The heartbreak of another Senate vote in favor of dragnet collection of Americans’ communications, however, pales in comparison to the rejection of modest amendments in favor of more FISA transparency and accountability. These amendments would not have limited the government’s spying program in any way; they would have only compelled the government to tell the public what the law says and whether it protects us from government prying.
Sen. Ron Wyden (D-OR), a long-time member of the Intelligence Committee, valiantly fought for a year- and-a-half for basic information about how this surveillance program affects Americans and put a hold on the bill until a debate and amendment process was scheduled.  He finally got a vote to force disclosure of whether the National Security Agency is vacuuming up wholly domestic communications or searching through FISA taps for Americans, yet it failed by a vote of 42-52.  Sen. Jeff Merkley (D-OR) also went to the mattress over the secret FISA court opinions that determine whether we have constitutional rights to privacy in foreign intelligence investigations.  He put the Senate to a vote on whether the administration should be forced to release the court opinions, supply unclassified summaries of them, or explain why they should be kept secret. That one went down 37-54.  Simply put, if the public were to find out what the government is doing with our information, or how many of us are affected, the program would be “destroyed,” according to Senate Intelligence Committee Chair Dianne Feinstein (D-CA).
If this news has you ready to throw yourself off of the FISA cliff, take in a few rays of hope from the Senate floor:
  • Broad support exists for making the FISA Amendments Act more transparent. Close to half of the Senate is on record demanding disclosure, and that should only help efforts to get basic information about how our rights are affected by this spy program.
  • Senate opposition to FISA is now bipartisan, thanks to Sens. Rand Paul (R-KY), Mike Lee (R-UT), and Lisa Murkowski (R-AK).  They represent an emerging caucus of libertarian opposition within the Republican Party to unchecked national security authority.
  • Feinstein agreed to work with Merkley toward release of the secret FISA court rulings, and possibly compel disclosure through the next Intelligence Authorization bill, if necessary. She also specifically offered to work with Sen. Patrick Leahy (D-VT) on his requests, too.
Wyden will never, ever give up. Seriously.
So while FISA is done for now, we’ll be calling on you for your support again this year to follow up on these floor promises. Here’s wishing you more robust privacy rights in the new year.
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Rajesh De, NSA General Counsel, Defends Warrantless Wiretapping Program

Posted:   |  Updated: 02/28/2013 12:44 pm EST
WASHINGTON -- One day after the Supreme Court blocked a lawsuit against warrantless wiretapping, the National Security Agency's top lawyer offered a rare public defense of the U.S. government's secret spying program. General Counsel Rajesh De's speech at the Georgetown University Law Center on Wednesday was short on specifics, but long on claims that the agency is protecting Americans' privacy.
While conceding that he worked for "an agency whose philosophy is generally to stay mum whenever possible," De said pervasive falsehoods about the NSA are poisoning the public debate around the wiretapping program that the agency runs. Anyone who believes the NSA "operates in the shadows, free from external scrutiny or true accountability," he argued, is buying into a myth.
"In my ten months at the NSA, it's evident to me that I am the general counsel for one of the most highly regulated entities in the world," De said.
Whistleblowers and journalists have painted a fearsome picture of the post-9/11 capabilities of the NSA, a 30,000-person strong spy agency charged with collecting foreign signals intelligence. Former agency employees have stepped forward to claim that civil liberties protections were abandoned in the war on terror and that the agency wields nearly limitless power to listen in on communications -- not just abroad, but also at home. Privacy advocates have raised alarms about the agency's construction of a massive, $2 billion data center in rural Utah.
Public debate has centered around the agency's warrantless wiretapping program. The George W. Bush administration used the NSA as the home base for an unauthorized, wide-reaching wiretapping program, which cemented suspicions that the agency considered itself above the law. In 2008, Congress passed a law making the wiretapping program legal, but also implemented changes to ensure that it only targeted people abroad.
De has been on the job only since April 2012, after a stint as President Barack Obama's staff secretary. What he has learned in his short tenure as counsel for the agency, making sure it stays within legal and constitutional bounds, he said, belies impressions many have of the wiretapping program.
De said the idea that the NSA is "a vacuum that indiscriminately sweeps up and stores global communications" is false. That, he argued, would be "counterproductive" and "neither feasible nor desirable." Also false, he added: the notion that the "NSA is spying on Americans at home and abroad with questionable or no legal basis."
De did not detail what the NSA has done since the 2008 wiretapping law's passage to safeguard Americans' privacy rights. The NSA has long maintained that revealing its sources and methods might allow terrorists to evade detection. But, he said, the NSA is "subject to a spectrum of detailed scrutiny throughout all three branches of government."
De's argument will likely fail to convince those skeptical of the agency. The Supreme Court's decision to throw out a lawsuit against the warrantless wiretapping program on Tuesday has left civil liberties advocates with a sinking feeling that the judiciary has abandoned its role as a check on constitutional excesses. Efforts in Congress, led by Senators Jeff Merkley (D-Ore.) and Ron Wyden (D-Ore.), to force the intelligence community to reveal how many Americans it accidentally sweeps up with the wiretapping program have been unsuccessful.
"When you talk about oversight, and you can't even get a rough estimate of how many law-abiding Americans had their communications swept up by this law ... the idea of robust oversight really ought to be called toothless oversight if you don't have that kind of information," Wyden, a member of the Senate Intelligence Committee, said on the Senate floor in December.
De's faith in accountability emanating from the legislative branch was met with skepticism by at least one listener in his audience -- former Department of Homeland Security Chief Privacy Officer Mary Ellen Callahan. Before she left office last year, Callahan tussled with other agencies over how broadly they should share private information on Americans.
At a panel immediately after De's speech, Callahan said, "I do not believe Congress is functioning" as an oversight body for the intelligence community.
"I do not see that happening. And that's my concern because that's an important function, fundamentally involving the branches of government," she told HuffPost. "NSA actually has a lot of statutory infrastructure built into it. But I haven't seen the NSA go up on the hill, and I haven't seen any of the other [members of the] intelligence community go up on the hill and have a thoughtful discussion ... even my awareness of the classified ones."
Read De's full speech given at Georgetown University Law Center

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