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A Nation Represented By Sheep

NSA sealThe verdict is in and the Washington Post actually gets it right: the Democrats allowed themselves be be stampeded into passing a wholesale gutting of FISA that goes far beyond any rationale the President’s misleading statements covered and far beyond every description the President has given of his Terrorist Surveillance Program for the past two years.

To call this legislation ill-considered is to give it too much credit: It was scarcely considered at all. Instead, it was strong-armed through both chambers by an administration that seized the opportunity to write its warrantless wiretapping program into law — or, more precisely, to write it out from under any real legal restrictions.

After telling Congress and the public that the reason they needed to revise FISA was to ensure they could spy on foreign-to-foreign communications that might be routed through US facilities (to close an alleged loophole created by a FISA court ruling that such surveillance required a warrant), the White House went for broke. The New York Times now reports that the Administration actually had very different reasons to make wholesale changes in FISA:

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.
. . .
“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Under just some of the revisions, NSA can spy on any call you make to or receive from another country (or a place the AG reasonable believes is to/from another country), without a warrant, as long as Alberto Gonzales and the Director NSA claim they reasonably believe it involves “foreign intelligence.” There doesn’t have to be any connection with a foreign power with whom we are war or terrorist group. Just you and your foreign friends is enough. The FISA court may examine the overall process in some undefined, rubberstamp way, but it cannot consider the reasonableness of your individual case. Any pretense that the 4th Amendment applies is gone.

So you can be involved in totally innocent calls or e-mails with a friend or your cousin in London, and the government can spy on your communications without a warrant, without your knowledge and without the knowedge or approval of the FISA court. You can’t get access to what they learned or what they did with that information. All you’ll know is that you or your friend/cousin/kid/colleague can’t get on a plane. Or someone disappears. Oh, and as a result of the 6th Circuit Court overturning a District Court’s ruling that the original TSP was unconstitutional, you don’t have standing to challenge this wholesale eviseration of the 4th Amendment. No court review; just Alberto and Rove.

Bear in mind that every time you open up the comments section of Firedoglake, you are in communication with other readers in other countries. Facebook is now a venue for spying. Or maybe your kids are travelling in Europe and want to call or e-mail home. Or you order something from a Danish firm. Would you trust Alberto Gonzales to decide whether spying on you was reasonable, knowing he never had to be accountable to anyone? Do you trust Karl Rove to deal with the information they gather?

Virtually every Republican, plus 41 Democrats in the House and 16 in the Senate think saying “no” to giving the government such unchecked powers in violation of the 4th Amendment was either unreasonable or would have jeopardized their reelection.

We are a nation represented by sheep.

For more details on the FISA changes, start here and here.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley