Is Your Senator Using The Distraction Of The Debt Ceiling To Support The Feds Secret Interpretation Of Spying Laws?

Legal Issues

from the sneaky-sneaky dept

We were just reporting on how Director of National Intelligence James Clapper was tap dancing around some specific questions about how much warrantless spying on Americans US federal intelligence agencies do. Much of that discussion revolved around the controversial FISA Amendments Act (recursively called the FAA) of 2008, which you may recall as the law that both made warrantless wiretapping officially legal (despite the fact that the federal government had been doing it for years under a very questionable legal theory) and granted telecom companies retroactive immunity for having helped the feds get such wiretaps despite the lack of warrants (and, in some cases, nothing more than a post-it note asking for it).

The FAA is set to expire in 2012, but, as we’ve seen with any law that grants the federal government more power to spy on Americans without oversight, there is no way the folks in power want to give up such things. Now come reports that, while most of Congress is focused on that whole debt ceiling thing, some have decided this is the perfect cover to quickly and secretly re-up the FAA. It’s been reported that the Senate Select Committee on Intelligence is likely meeting behind closed doors today in an effort (by some) to re-up the FAA now, before anyone even realizes it’s being debated. The last thing they want is pesky civil libertarians to re-start the discussion about the general constitutionality of spying on Americans without a warrant (believing in the 4th Amendment is sooooo old fashioned).

In trying to hunt down more details about what’s going on, we found out that Senators Wyden and Udall — who, as we’ve been discussing, have been trying to stop the federal government from secretly interpreting these laws in ways that seem contrary to what most believe the laws say — are trying to add an amendment to this attempt to reauthorize the FAA. It’s difficult to see how anyone can, in good conscience, vote against this. It includes such basic truths as:

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

The amendment specifically says that the Attorney General and the Director of National Intelligence would need to explain “the problems posed by the reliance of government agencies and departments on interpretations of domestic surveillance authorities that are inconsistent with the understanding of such authorities by the public.”

Who could possibly vote against that?

Well, tragically, since this supposed meeting is “closed” (though not classified), the Senators get to hide from view for a while. It’s one of those arcane Senate rules that are all too often used to allow Senators to avoid public scrutiny for their actions. While no members of the public or press are allowed in the room, and those in the room cannot tell what anyone else says (or votes) in the room… since it’s not classified the Senators who are in the room can absolutely say what they said or did in the room. The specific votes on this particular amendment will be made public three weeks after the markup occurs, buying anyone voting against it three weeks of cover (and when the votes come out, they can pretend this is “old news”). The amendment itself is not secret or classified. Senators cannot reasonably claim that they can’t say how they voted for “national security” reasons (a popular cop out) because their votes are going to be made public. The only reason to not answer the question of how they voted is because they want to avoid scrutiny.

So… if your Senator happens to be on the Senate Intelligence Committee now would be the time to call, email, tweet, fax, carrier pigeon, etc. to ask them whether they voted to let Americans know how the government is secretly interpreting its own laws… or if they voted against your basic fundamental rights to know how the government interprets its own laws. The list of Senators on the Committee are as follows:

• Dianne Feinstein, California (chair)
• Saxby Chambliss, Georgia (vice chair)
• John D. Rockefeller IV, West Virginia
• Olympia J. Snowe, Maine
• Ron Wyden, Oregon
• Richard Burr, North Carolina
• Barbara A. Mikulski, Maryland
• James Risch, Idaho
• Bill Nelson, Florida
• Daniel Coats, Indiana
• Kent Conrad, North Dakota
• Roy Blunt, Missouri
• Mark Udall, Colorado
• Marco Rubio, Florida
• Mark Warner, Virginia

If any of these Senators represent you, please reach out to them as soon as possible to ask them how they voted on the amendment embedded below, and please report back to us with what you hear. Let’s not let certain Senators allow the government to make up its own rules and not tell the American public what those rules are.

Filed Under: fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate