Five more years of the same old FISA
George W. Bush’s war on terror produced two scandalous revelations. One was that the administration was using torture (a.k.a. “enhanced interrogation techniques”) to obtain information from suspected terrorists. That scandal continues to resonate in the debate over the movie “Zero Dark Thirty” and its supposed endorsement of the efficacy of torture in the search for Osama bin Laden.
The other scandal began with the revelation by the New York Times that after 9/11, the Bush administration monitored the international phone calls and emails of hundreds, perhaps thousands, of people within the United States without a court order. But while privacy advocates complain that the National Security Agency may still be vacuuming up the communications of Americans with friends and associates abroad, the issue of electronic surveillance elicits a collective yawn in Washington.
This week the Senate approved a five-year reauthorization of amendments to the Foreign Intelligence Surveillance Act, or FISA, without new language designed to ensure that large quantities of communications involving Americans aren’t being retrieved without a warrant. The legislation now goes to President Obama.
The administration has pointed out that, under a law approved after the revelation of the Bush surveillance program, U.S. citizens and permanent residents may not be targeted for electronic surveillance without a court order. Nor, according to the office of the director of national intelligence, is the government engaging in back-door searches of Americans’ communications.
Those assurances haven’t eased the apprehensions of civil libertarians who wonder -- and they can only wonder, given the secrecy of the program -- whether vast quantities of conversations involving Americans are being swooped up and data-mined. Some also worry that the surveillance program has resulted in the interception of purely domestic communications.
Left by the wayside in the FISA extension were amendments that would have allayed some of the fears. One would have prohibited, in the absence of a court order, “the intentional acquisition of the contents of communications of a particular United States person or the searching of the contents of communications ... in an effort to find communications of a particular United States person.” Another would have required the Justice Department and intelligence agencies to inform Congress of how many people in the U.S. have had their communications either “acquired” or “reviewed.” (The DNI has said that it’s not “reasonably possible” to provide such an estimate.)
Maybe it’s true that violations of Americans’ privacy are rare and that the intelligence community is scrupulous about not targeting Americans (even in the sense of searching stored communications by placing an American’s name in a search field). It may also be the case that Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Intelligence Committee, and other members of Congress are engaging in aggressive oversight of the surveillance program.
Even so, Congress could have amended the legislation to require greater accountability. In declining to do so, it probably hasn’t incurred much political damage -- any more than Obama has suffered with the public because of his embrace of the surveillance program. If Americans are worried about their privacy, they aren’t communicating that message to their elected representatives.
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