FISA Fight – Take Action Today to Protect Your Liberty

I can hardly believe what I’ve been reading. The Senate is about to give away your protection from government spying. They are going to limit debate on amendments the FISA bill before Congress.

It’s time for US to act now. PLEASE flood congress with calls and letters demanding:

1. Only pass a FISA modernization bill that has individualized warrants for people in the United States.
   
2. DO NOT to provide telecom companies with immunity for breaking the law.
   
3. Blanket or program “warrants” that allow the government to vacuum up the international telephone calls and emails of Americans aren’t really warrants at all, and they aren’t constitutional. Do not allow blanket warrants.
   
4. Americans are looking to the Senate to stand up to the Bush Administration, not cave into threats of being labeled soft on terrorism.

It’s up to us. Only we can stand up and protect our liberty. As Woodrow Wilson said, “Liberty has never come from the government. Liberty has always come from the subjects of the government. The history of government is a history of resistance. The history of liberty is the history of the limitation of government, not the increase of it.”


Background: For a historical background on the FISA fight, start here. To hear Chris Dodd give a brief explanation of what is at stake, go here.

Background on the FISA Debate: Bush Broke the Law

President George W. Bush violated the US Constitution and the law when he authorized the National Security Agency (NSA) to conduct warrantless surveillance of Americans. Three principles are enshrined in the Fourth Amendment.

1. A person’s home is his/her sanctuary.
2. Citizens are safe from unreasonable search and seizure without a warrant.
3. The warrant must be provided by an independent court upon probable cause.

President Bush also violated the Foreign Intelligence Surveillance Act (FISA). I will begin at the roots of US law showing that authorizing warrantless surveillance of US Citizens is a violation of the Fourth Amendment. I will then show how FISA came about and how the Bush Administration violated this law.

What is the controversy? Since 2001 the Bush Administration has allowed the NSA to read emails, listen to telephone conversations, (Lacayo, 2006) and capture data about incoming/outgoing phone calls of tens of millions of American Citizens (Cauley, 2006). The fact that the NSA spied on Americans without first obtaining a warrant is without dispute (Risen, 2005). This has been widely reported and has been acknowledged by President Bush (Sanger, 2005). The Bush Administration argues that this authority was specifically given to the president in Article II of the US Constitution and in the Authorization for Use of Military Force (AUMF), enacted on September 18, 2001 (Gonzalez, 2006, January 16).

The American legal system owes its roots to the Common Law, a set of laws based, not on statute but on precedent (Wikipedia.org, Common Law, 2006). To this date, the Supreme Court will acknowledge the precedent of the common law in writing its opinions. Sir Edward Coke’s writings on the English common law were the definitive legal texts for over 300 years. (Wikipedia.org, Sir Edward Coke, 2006) In 1628 Sir Coke wrote “A man's house is his castle – et domus sua cuique est tutissimum refugium.” The Latin phrase means "And where shall a man be safe if it be not in his own house?” The writers of the Declaration of Independence and the Constitution were keenly aware of Coke’s writings and echoed his language. For example they borrowed the phrase “life, liberty and the pursuit of [property] happiness” directly from Coke.

During the 1700’s, King George allowed customs officials to search anywhere at any time by using “writs of assistance,” (U-S-History.com, Writs of Assistance, 2006) or non-specific warrants. This behavior was such an affront to the American Colonists that they later referred to it in the Declaration of Independence, justifying the Colonists’ desire to become self-governed.

In 1761, James Otis referred back to the writings of Coke when he argued in court against the writs of assistance. He said:

“A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire” (U-S-History.com, James Otis, 2006).

The Common Law concept of a person’s home as his or her sanctuary was clearly on the Founding Fathers’ minds when they included the fourth amendment to the constitution.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Supreme Court several times has affirmed the need for an independent court to issue warrants, maintaining a separation of power. For example, in Trupiano vs. United States, 334 U.S. 699, the Supreme Court wrote, “It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable…This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities.”

These important principles - that a person’s home is his/her sanctuary, that they are safe from unreasonable search and seizure without a warrant and that the warrant must be provided by an independent court upon probable cause – went undisputed for generations. The importance of these principles was again affirmed in the wake of the scandals of the Nixon Administration.

In the early 1970’s, under direction from the Nixon Administration, the FBI and other governmental agencies were used to spy on those whom Nixon chose to label as “dissidents.” Some of those dissidents included Rev. Martin Luther King, Jr., Eldridge Cleaver, the Southern Christian Leadership Conference and anti-war protesters. Years later, in an interview with television personality David Frost, Nixon responded to a series of questions (LandmarkCases.org, 2006):

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan [which included warrantless wiretapping] or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

This interview was later included in testimony before the House Permanent Select Committee on Intelligence. This evidence was used in writing the law known as the Foreign Intelligence Surveillance Act (FISA). This act restricts the right of the intelligence agencies to intercept communication that involves US Citizens or long-term residents of the US. The law requires the Attorney General to go before a special FISA court to obtain a warrant for foreign surveillance in which one of the parties is a US Citizen. There are also exceptions built into the law, allowing a 15-day grace period for warrantless wiretapping during times of war and providing for retroactive warrants (FISA, 1978).

How difficult was it to obtain a warrant using the FISA process? According to The Crisis, the official publication of the NAACP (Gaines, 2006), “From 1979 to 2004, FISA denied only four of the government's applications for surveillance while approving 18,727 requests…The four rejections occurred in 2003.”

It was in the days following September 11th that President Bush ordered spy agencies, including the NSA to begin surveillance activities that included US Citizens. Despite a clear mandate from the Constitution and from FISA to first obtain a warrant, the president decided that he had the authority to ignore the requirement and to “use all necessary and appropriate force.”

The warrantless surveillance program remained a secret from the public until December 16, 2005. The New York Times knew about the spying program for more than a year, but had delayed publication of the article upon request from the Bush Administration.

Like the Nixon Administration before it, the Bush Administration has justified its actions by arbitrarily assigning people labels. Nixon arbitrarily labeled US Citizens as “dissidents.” The Bush Administration has branded people as “persons of interest,” “terrorists” or “enemy combatants.” Among some of the groups targeted by the Bush Administration are Greenpeace; Food Not Bombs; Code Pink, an international women's peace organization; and the Rhode-Island based Community Coalition for Peace (ACLU, 2006a).

In summary, the roots of American law have long established the rights to privacy and protection within one’s home and possessions. This principle was enshrined in the fourth amendment to the US Constitution. This right to protection from search and seizure was further clarified by Congress in the wake of the scandals of the Nixon Administration and set into statute under FISA. None of this has stopped the Bush Administration from flagrantly violating the law in its “war on terror.” By ignoring the constitutionally-mandated separation of powers, the Bush Administration has brought us to another constitutional crisis. How this will end is up to the Courts, to Congress and to us, the citizens of the United States who hold those elected officials accountable.

References:

ACLU (2006a). FBI Counterterrorism Unit Spies on Peaceful, Faith-Based Protest Group, retrieved May 14, 2006 from http://www.aclu.org/safefree/spying/25442prs20060504.html

ACLU (2006b). National Security Letters Gag Patriot Act Debate, retrieved May 4, 2006 from http://www.aclu.org/safefree/nationalsecurityletters/index.html

ACLU (2006c). Presidential Powers, NSA Spying, and the War on Terrorism: Americans’ Attitudes on Recent Events, retrieved on May 28, 2006 from http://www.aclu.org/images/general/asset_upload_file966_24263.pdf

Bartels, L. (1993, June) Messages Received: The Political Impact of Media Exposure. American Political Science Review 87(2) pp. 267-285

Brief of Amici Curiae, Center for Constitutional Rights and the American Civil Liberties Union

Cauley, L. (2006, May 11). NSA has massive database of Americans’ phone calls. USA Today, p. 1A, 5A

Cole, D. (2006, February 20). NSA Spying Myths, Nation, 282(7), pp. 5 – 7

Editorial (2005, January 26). The Wrong Attorney General, New York Times, 154(53106), p. A16

Editorial:(2006, 12 March). Domestic Spying Powers: Show some spine Congress. Philadelphia Inquirer, The (PA)

Egelko B. (2006, April 8). Court filings may reveal role of AT&T in federal Net spying. San Francisco Chronicle (CA). p. A5

Eggen, D. (2004, August 20). U.S. Uses Secret Evidence In Secrecy Fight With ACLU. Washington Post, p. A17

Gaines, P. (2006 March/April). Surveillance: Bush's Spies, Hoover's Ghost. The Crisis. pp.12 – 15

Gellman, B. (2005, November 6). The FBI’s Secret Scrutiny. Washing Post, p. A01

Gonzalez, A. (2006, January 16) Letter from the Office of the Attorney General to Senator Bill Frist, dated 16 January 2006, retrieved 20 April 2006 from http://www.fas.org/irp/nsa/doj011906.pdf

Gonzalez, A. (2006, February 6). United States Attorney General, US Department of Justice FDCH Congressional Testimony, Senate Judiciary Committee, NSA and Domestic Spying, 02/06/2006

Hirsch, E., Kett, J., and Trefil, J. (Eds.) (2002), The New Dictionary of Cultural Literacy, Third Edition, Boston: Houghton Mifflin Company.

Jaeger, P. & Bertot, J. & McClure, C. (2003). The impact of the USA Patriot Act on collection and analysis of personal information under the Foreign Intelligence Surveillance Act. Government Information Quarterly 20, pp. 295 – 314

Kelly, B. (2003). Worth Repeating: More Than 5,000 Classic and Contemporary Quotes. Grand Rapids, MI: Kregel Academic & Professional

Lacayo, R., et al (2006, January 9). Has Bush Gone Too Far? Time, Vol. 167 Issue 2, pp. 24-32

LandmarkCases.org article on David Frost interview of Richard Nixon, retrieved May 1, 2006 from http://www.landmarkcases.org/nixon/nixonview.html

Lyon, B., Secret Evidence, retrieved May 13, 2006 from http://writ.news.findlaw.com/commentary/20000621_lyon.html

McCombs, M. & Shaw, D. (1972 Summer). The Agenda-Setting Function of Mass Media. Public Opinion Quarterly, 36(2) pp. 176-187

Montesquieu, Charles de Secondat, baron de (2002). The Spirit of Laws, Amherst, NY: Prometheus Books

PBS (2006, May 11). NSA Program Revealed, retrieved May 16, 2006 from http://www.pbs.org/newshour/bb/fedagencies/jan-june06/nsa_5-11.html

Priest, D. (2006, May 13). Secrecy Privilege Invoked in Fighting Ex-Detainee's Lawsuit. Washington Post, p. A03

Q&A: The NSA's Domestic Eavesdropping Program. Retrieved May 4, 2006 from http://www.npr.org/templates/story/story.php?storyId=5187738

Risen, J. & Lichtblau E. (2005, December 16) Bush Lets U.S. Spy on Callers Without Courts. New York Times p. A1

Rudalevige A. (2005). The New Imperial Presidency: Renewing Presidential Power after Watergate. Ann Arbor, MI: University of Michigan Press.

Sanger, D. (2005, December 18). In address, Bush says he ordered domestic spying. New York Times, p. 1

Savage, C. (2006, April 30). Bush challenges hundreds of laws. Boston Globe, Retrieved May 7, 2006, from http://www.boston.com/news/nation/washington/articles/2006/04/30/bush_challenges_hundreds_of_laws/

Savage, C. (2006, May 3). Hearings vowed on Bush’s Power. Boston Globe, Retrieved May 6, 2006 from http://www.boston.com/news/nation/articles/2006/05/03/hearing_vowed_on_bushs_powers/

Schlesinger, A. (2004 Reprint edition). The Imperial Presidency. Boston: Mariner Books.

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None Dare Call it Torture

There’s a story told about President Abraham Lincoln. A group of citizens came to him early in his presidency, before the start of the civil war, and tried to get him to sign the Emancipation Proclamation. Lincoln listened politely, and then posed a question to his visitors. “If you call a dog’s tail a leg, then how many legs would a dog have?” The group answered “Five.” “No,” replied Lincoln. “A dog has four legs. Calling a tail a leg does not make it a leg.”

If George W. Bush would have been president in 1861, he might have gotten his Attorney General to redefine the word slavery as “executions specifically with guillotines.” Then he would have said to the citizens, “This government does not enslave people. There are highly trained professionals holding these extremists and terrorists. We don’t practice slavery. There is no slavery. Slavery is not in our nature.” Bush would have called a tail a leg and pretended everything was alright.

A 2002 Justice Department memo said that torture only occurs when the prisoner experiences “pain associated with organ failure or death.” With this broad definition, anything that did not kill the prisoner was not torture. Though in 2004, the Justice Department posted a note on its web site that “Torture is abhorrent both to American law and values," in 2005 they approved the very techniques they had just declared to be abhorrent.

On October 3rd, a New York Times article revealed that in 2005 the Justice Department released an opinion that gave “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” Around the same time that Congress passed a law affirming that cruel, inhuman or degrading treatment of prisoners was illegal; the Justice Department was redefining the terms by issuing blanket statements that none of the CIA’s techniques were cruel, inhuman or degrading.

By the stroke of the pen, the Bush administration changed the definition of torture. They authorized head-slapping, water-boarding, sleep deprivation, and exposing people to frigid temperatures. In the mind of President Bush, if he says torture is not torture, then America does not practice torture.

This is not the only time that the Bush Administration has redefined words to suit its purposes.

• For example, the Bush Administration does not want to say they send people to other countries to be tortured, so it’s called “extraordinary rendition.” Whether we do the torturing or we outsource torturing to others, it’s still torture.
  
• If the Bush Administration wants to strip a human being of his or her rights, they call them an “enemy combatant.” This is a made-up term that avoids affording the person the rights of a US prisoner or a prisoner-of-war. By creating a new set of words for people, the Bush Administration feels they can justify any treatment of human beings.
  
• According to the Bush Administration, by placing a person at Guantánamo Bay, Cuba the person is not on US territory, and yet he or she is not on the territory of any other nation. Where are they, the moon? The Bush Administration would like to make you think that these people have been taken off of the planet, but that is not true. People in Guantánamo Bay, Cuba, a US military installation, are on US property. The CIA also operates “black sites,” prisons where US laws supposedly do not apply. The theory that US laws do not apply is not true, no matter how the Bush Administration would like to define the terms.
  
• The Bush Administration has a habit of using “signing statements.” When the president signs a bill into law, if he decides that the law does not apply to him, he simply attaches a signing statement that says so. This is a clear violation of the separation of powers.
  
• The law said that the Bush Administration had to get a court order from the FISA court to spy on Americans. The Bush Administration decided that the law did not apply to them, so they spied on us anyway. Worse yet, Congress passed a temporary bill changing the law that Bush had broken, retroactively making the illegal act of spying on Americans legal.
  
• And all of this is protected by a claim of “state secrets,” a claim that was just supported by the right-wing friendly Supreme Court.

I am reminded of the comment of Special Counsel for the Army Joseph N. Welch to Senator Joseph McCarthy. “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” I am horrified by the brazen behavior of the Bush Administration and the seeming lack of public outcry. Have we no sense of decency?

If no one else will expose the indecency of the Bush Administration, then it’s up to us, the people. Here are three actions you can take today.

1. Join Amnesty International’s effort 86 Days to restore civility and the rule of law. October 17th marks the first year anniversary of the Military Commissions Act. There will be events held around the country starting on October 17th and culminating on January 11th, the anniversary of the first detainee held at Guantánamo Bay, 86 days later.
   
2. Flood the phones in Congress in support of the FISA Modernization Bill.
   
3. Press the presidential candidates to come out clearly in opposition to the use of torture – and be sure to make them define their terms!

Together we can make a difference. When others do not dare to do so, we will call torture just what it is: torture.

One Grain at a Time

Have you ever held a single dry soybean in your hand? What do you think it weighs: one gram? Imagine holding a soybean in your palm and see if you can get a sense of the weight of it. It’s very, very light – hardly noticeable. And yet, this year, somewhere in the Midwest, it is very likely that someone will probably die from the weight of soybeans.

At a grain silo, grain in the silo drains into several openings in the floor, then into an underground tunnel and onto a conveyor belt. The grain occasionally will hang up and not flow through those openings. When it hangs up, too often someone will enter the silo to move the grain. And too often, that someone will not make it out of the grain silo alive. It is too common an occurrence. Sometimes the person who enters the silo places their face too close to the grain, where there is a layer of carbon dioxide and they die from a lack of oxygen, but just as often the person suffocates by an avalanche of the grain inside. One tiny grain is very light, but when a man is under thousands of grains, they can take his life.

I don’t know what it’s like to suffer such a fate and I would not compare anything I’ve experienced to the suffering of the families of such a farmer, but I will say I know what it’s like to have thousands and thousands of tiny weights lying on top of me until I can hardly breathe. Every day tiny infractions of our rights as citizens, every human right and civil liberty that is violated, stack on us like so much grain, unnoticed and unimportant at first, until it is too late.

Today the news media reported that a deal has been struck for sharing oil revenue in all of the Iraqi provinces equally. This is good news, right? I should feel relieved, right? But then I found out that the dark side of the story went mostly unreported. It seems that big oil companies are being given absolute control over Iraqi oil, and it feels like another grain has fallen on top of me. A federal appeals court said it was fine to indefinitely hold prisoners without charge. “Tic,” goes the sound of one tiny grain striking my arm. Dick Cheney is saber-rattling with Iran. Tic. The Bush Administration continues to spy on us. Tic, tic, tic.

The horrible thing about imagining oneself suffocated in a grain bin is that you observe the phenomenon from within the tragedy. This is not like sitting in your car and watching a careening truck coming your way. You have no sense of dispassionate detachment. You are inside the tragedy as it happens grain by grain. As a citizen, I sit within the US and watch this imperial presidency implode upon itself and there is nothing I can do about it. Tic, tic, tic go the grains and I just can’t seem to get ahead of them. Soon their weight is alarming, but by the time I realize this, it’s almost too late.

All we can do is struggle. We must struggle for the oxygen of freedom, for overcoming the weight that besets us. We must struggle against imperialism and hubris; against the military-industrial complex. We must struggle against violations of human rights and civil liberties wherever they occur. If we do not struggle, then one grain at a time, we will be overcome. Struggle on!