Revealed: Spying Abuses 'Systemic' In Recent Months -- Which Is Exactly What the 2008 FISA Law Was Designed to Do
This piece originally appeared on Salon.com.
In The New York Times last night, James Risen and Eric Lichtblau -- the reporters who won the Pulitzer Prize for informing the nation in 2005 that the NSA was illegally spying on Americans on the orders of George Bush, a revelation that produced no consequences other than the 2008 Democratic Congress' legalizing most of those activities and retroactively protecting the wrongdoers -- passed on leaked revelations of brand new NSA domestic spying abuses, ones enabled by the 2008 FISA law. The article reports that the spying abuses are " significant and systemic"; involve improper interception of "significant amounts" of the emails and telephone calls of Americans, including purely domestic communications; and that, under Bush (prior to the new FISA law), the NSA tried to eavesdrop with no warrants on a member of Congress traveling to the Middle East. The sources for the article report that "the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers."
In reacting to these leaks, I share Digby's sentiments entirely: "It was so inevitable that I can't even find the energy to get worked up about it." I also don't want this news to distract from what ought to be the singular big story of the day -- namely, whether Obama will release the 3 key Bush DOJ memos that legalized specific torture techniques (as Andrew Sullivan correctly says, a failure of full disclosure "will betray all who supported him to restore the rule of law"). Nonetheless, there are some critical facts that need to be highlighted in order to prevent distortion of the meaning of the Risen/Lichtblau article.
These widespread eavesdropping abuses enabled by the 2008 FISA bill -- a bill passed with the support of Barack Obama along with the entire top Democratic leadership in the House, including Nancy Pelosi and Steny Hoyer, and substantial numbers of Democratic Senators -- aren't a bug in that bill, but rather, were one of the central features of it. Everyone knew that the FISA bill which Congressional Democrats passed -- and which George Bush and Dick Cheney celebrated -- would enable these surveillance abuses. That was the purpose of the law: to gut the safeguards in place since the 1978 passage of FISA, destroy the crux of the oversight regime over executive surveillance of Americans, and enable and empower unchecked government spying activities. This was not an unintended and unforeseeable consequence of that bill. To the contrary, it was crystal clear that by gutting FISA's safeguards, the Democratic Congress was making these abuses inevitable.
Opponents of this bill were warning that exactly these abuses would occur if the bill was passed. Here's how I summarized some of the opposition to the FISA bill on June 21, 2008 -- just a couple of days before its passage:
The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it " fails to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power." Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.
Abolishing eavesdropping safeguards was the central purpose of the FISA bill. It was why Dick Cheney and Michael McConnell were demanding its passage. Yale Law Professor Jack Balkin at the time wrote: