Bill Bans NSA Eavesdropping 424
An anonymous reader writes "The US house of representatives today passed a bill outlawing illegal domestic wiretapping by the government. Now government agencies are only allowed to access your private communications under terms of FISA. 'As the Senate Report noted, FISA "was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." The Bill ends plans by the Bush Administration that would give the NSA the freedom to pry into the lives of ordinary Americans. The ACLU noted that, despite many recent hearings about 'modernization' and 'technology neutrality,' the administration has not publicly provided Congress with a single example of how current FISA standards have either prevented the intelligence community from using new technologies, or proven unworkable for the agents tasked with following them.'"
Of course they haven't. (Score:5, Informative)
They haven't provided it privately, either, and the reason is simple.
The FISA court is well-known as being basically a warrent rubber-stamping court. Out of thousands of requests sent in the last few years, only a handfull have been rejected, and most of those were accepted with changes suggested by the court. Since the court will issues warrants post-facto, even temporal urgency isn't an obstacle to getting a FISA warrant. Basically in any situation where the request is properly made and has any merit whatsoever the FISA court grants the warrant, it can be done retroactively, and there's pretty much no reason to skip the process. So why would the administration bypass the court in order to conduct a search?
Because the searches had so little merit that even FISA would not grant warrants.
So no, Bush's administration is not going to give an example of a situation where FISA got in the way of conducting legitimate security operations because no such case exists, it could only give examples of illegitimate ones and it isn't going to do that either.
This is a great start, though I hesitate to support the inherent thinking behind it -- which is, the President has the power to do whatever the fuck he wants until Congress specifically steps in and removes one of these infinitely many powers. But that's okay, we have to do something to at least make it explicit that when the President breaks the law, that means it was illegal, not that the Pres can put the pieces back together however he chooses. And I hope they continue to pass laws constraining government power, increasing oversight, and that they do this right up to the point where one of them gets in office and realizes they are subject to those same laws.
What does it do, again? (Score:3, Informative)
It's already criminal for government to access those outside of the provisions of FISA, that's, actually, the entire point of FISA. That it was already outlawed should be obvious from the fact that it is "illegal wiretapping". The description presented here and in TFA, if perhaps not the law itself, is clearly redundant.
The link to the actual amendment in TFA seems to be broken, and while I can find references to the amendment (H.AMDT.182 to H.R.2082) I can't find the text of either the amendment or the amended bill (the amendment passed after the latest text I can find, the May 7 version of the bill.)
So I'm not sure what this new bill does in this regard if anything, whether it is just a clarification, or whether it creates some new enforcement mechanism that provides a remedy when the executive isn't interested in prosecuting themselves for the crime of violating FISA.
Re:Premature Especulation (Score:4, Informative)
Its the annual funding bill for the intelligence community. Presumably, the President would like to have some authority to spend funds for intelligence purposes.
Bush Will Ignore It (Score:5, Informative)
Although Bush did lie about stopping his crimes when this issue first blew up in the news, last week he said he'd continue [wired.com].
FISA was created after Congress (and America) learned about some of the extent to which Nixon had abused his power to spy on Americans without cause or Constitutional process. It has been amended over a dozen times since, to keep pace with changing technology and suspects. But Bush will ignore it all, because he's used to the Republican Congress Nixon lacked to perpetuate his tyrannies.
Bush is a committed criminal. Congress must impeach him immediately. While we still can.
Re:Premature Especulation (Score:5, Informative)
http://en.wikipedia.org/wiki/Signing_statement [wikipedia.org]
Clinton certain had a fair number of them, but half as many as George I, and in twice the time... and 1/6 the number of George II.
Total bullshit all around
Just trust the Supreme Court (Score:2, Informative)
( ie The people as opposed to the Supreme Court!)
BACKGROUND
Alexander Hamilton in Federalist Paper No. 83 -The friends and adversaries of the plan of the [constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty.
Thomas Jefferson's views were much stronger! -
" I consider trial by jury the only anchor yet imagined by man, by which a government can be held to the principles of it's constitution. " If you think that Jefferson overlooked the right to elect our representatives, you should consider a second quote of Jefferson, from a letter written in 1789, while serving. as ambassador to France: " Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say that it is better to leave them out of the Legislative. "
One Example: A Glorious Tradition of Free Speech
In 1735, jury nullification decided the celebrated seditious libel trial of John Peter Zenger. His newspaper had openly criticized the royal governor of New York. The current law made it a crime to publish any statement (true or false) criticizing public officials, laws, or the government in general. The jury was only to decide if the material in question had been published; the judge was to decide if the material was in violation of the statute.
Later "Judicial Refinements."
A U.S. Supreme Court decision, (Sparf and Hansen v. U.S.) in 1895, declared (in legal principle) that those jurors were criminals! The acceptance (in principle) of the immunity of a seated jury limited the full impact of the decision. This subject is explored more fully in the book, -
More recently - California has allowed judges to enter jury rooms, under certain special situations, to evaluate if the jury is reasoning properly! These actions have been examined (2001) by the California Supreme Court, and found acceptable based on the 1895 Supreme Court decision.JURY NULLIFICATION: The Evolution of a Doctrine,
pub 1998, by Carolina Academic Press, Author: Clay S. Conrad.
Jack
References for the political jury.
1. The best! But can you find it?
JURY NULLIFICATION: The Evolution of a Doctrine
A Cato Institute Book, pub 1998, by Carolina Academic Press,
Author: Clay S. Conrad
2.
WE THE JURY: The Jury System and the Ideal of Democracy
by Jeffery Abramson, professor of politics and legal studies
at Brandeis University, published 2000, Basic Books
Re:"Outlawing illegal domestic wiretapping." (Score:1, Informative)
I'm not sure what you are 'reading', so I do not know if I can suggest a particular method of reading to improve your understanding of this issue. Depending on your interest level, a book on Constitutional Law, even read 'simplistically', should be adequate to explicate the situation at hand, I'm sure.
Re:Actually, no, we don't already have this. (Score:1, Informative)
Any powers not explicitly granted to the federal government by the Constitution are reserved for the States and the people.
The fact that "phone calls" are entirely missing from the Constitution means that either they are implied by "papers and effects" (in which case a warrant is required), or else it means all wiretaps are illegal for the federal government. Take your pick; either all federal wiretaps are illegal, or all federal wiretaps require a warrant. There is no third choice.
Re:The ACLU is Full of Shit (Score:1, Informative)
I'm willing to lose Canary Wharf and half the London Underground if it means Labour's booted out right now and their half-baked biometric ID database and anti terrorism laws are scrapped, along with most CCTV cameras. A nice bonus would be to have the British population implanted with the American attitude to guns.
Don't you dare tell me I should feel threatened by terrorist boogeymen. If they were as mad, bad and dangerous to know as governments claim, if Al Qaeda existed in anything more than name, death tolls would be through the roof. They're not. These insane infringements on human rights are pointless. Even if they weren't, the loss of a few buildings and a fraction of the people that die every day are not a reason to sacrifice liberty.
Re:FISA is unconstitutional (Score:5, Informative)
I'm sorry, but you are mistaken. Not only that, but the case that extended the Fourth Amendment to prevent wiretapping phone lines without a warrant was a landmark ruling that shook constitutional law down to its roots. Here is Katz v. United States, 389 U.S. 347 (1967). Since the case is not that long, I will quote it in nearly its entirety, only making minor adjustments. Read all of it, slowly and carefully. Then read it again.
=====
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner (ed: Katz) was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, because "[t]here was no physical entrance into the area occupied by [the petitioner]." We granted certiorari in order to consider the constitutional questions thus presented.
The petitioner has phrased those questions as follows:
"A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.
"B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution."
We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual States.
Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye - it was the uninvited ear.
Wait, wait (Score:3, Informative)
Re:Exactly. (Score:2, Informative)
I'm a member.