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Secret Laws: FISA: The Movie!

Rushed Debate on Federal Spying Powers, CATO Institute, six minute video posted as “FISA: The Movie!” on the Association of Research Libraries “Policy Notes” site. A nice summary of the Foreign Intelligence Surveillance Act (FISA) domestic spying “debate” and re-authorization over the holidays.

Some answers emerge on warrantless surveillance

Back on September 18, 2007, the House Judiciary Committee chaired by John Conyers (D-Michigan) held a hearing entitled “Warrantless Surveillance and the Foreign Intelligence Surveillance Act”. In that hearing, Conyers posed some questions to the Justice Department to get at the Department’s views on the legal framework governing electronic surveillance under the amended [w:Foreign Intelligence Surveillance Act] (FISA) — we’ve been tracking FISA for some time on FGI. The Committee hearing volume (pdf) was published in June 2008 without the Justice Department’s answers to these questions, because they were provided to Congress too late to be included in the published record.

As you might remember, back in December, 2005 the NY Times broke a story about the Bush administration secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials. FAS as well as the Electronic Frontier Foundation (EFF) and other civil liberties organizations have been tracking the [w:NSA warrantless surveillance controversy].

Many thanks to Steven Aftergood and the Federation of American Scientists (FAS) for submitting a FOIA request to make public Assistant Attorney General Kenneth Wainstein’s written responses to those questions posed about this important program and bringing to light the legal perspective that held sway within the Bush administration’s Justice Department.

“If the so-called Terrorist Surveillance Program (TSP) was perfectly legal as has been claimed, why would companies who cooperated in it need immunity?” the Committee asked. (To protect classified information, among other reasons, the Department responded.) “Is the President free to disregard any provisions of FISA with which he disagrees?” (No, not exactly.) “If an individual in the United States is suspected of working in collusion with persons outside the United States–such that an investigation of one is in effect the investigation of the other–under what circumstances, generally, would you use criminal or other FISA wiretaps?” (Targeting of persons in the United States can only be done under FISA procedures.)

Wiretapping Program – Soon to be Legalized by Intelligence Court

Today, New York Times reported that the Wiretapping Program will be legalized by a federal intelligence court. It will authorize both the president and Congress to monitor overseas phone calls and e-mail messages without a court order, although this may include Americans’ personal communications. The report states that “in validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.”

Understanding FISA with flow charts

[UPDATE 2/27/2010: It seems that the Ketchup and Caviar blog is no more. The flow charts can still be viewed on BoingBoing and the text of the blog post is preserved and available at the internet Archive’s WayBack Machine. jrj]

Ketchup and Caviar has a very good post describing in flow charts the old FISA law and the changes made with the new FISA law. Click on the charts to get larger images.

ACLU et al sue US government over consitutionality of FISA Amendments Act

Last Wednesday was a pretty dark day for me and millions of other constitution-loving people when Congress passed the the FISA Amendments Act that included retroactive immunity for US telecommunications companies who’d participated in the Bush administration’s illegal warrantless wiretapping program of US citizens.

Well, a little ray of sunshine just broke through those dark clouds when, according to Threat Level (Wired News blog), the American Civil Liberties Union (ACLU) filed suit Thursday (along with the Electronic Frontier Foundation (EFF)), challenging the constitutionality of the act. The ACLU contends (.pdf) that the expanded spying power violates the Constitution’s prohibition on unreasonable searches and seizures.

If you can afford it, please consider donating to one or both of those orgs (link to EFF, ACLU) so they can keep up the good fight! (disclosure: I’m a proud EFF member!).

UPDATE: Glenn Greenwald has more including a podcast interview with Jameel Jaffer, the Director of the ACLU’s National Security Project.

[Thanks BoingBoing!]

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