Balkinization  

Sunday, August 05, 2007

The Party of Fear, the Party Without A Spine, and the National Surveillance State

JB

The passage of the new FISA bill by the Senate and now the House demonstrates that the Democrats stand neither for defending civil liberties nor for checking executive power.

They stand for nothing at all.

Conversely, the new bill shows that the Republican Party can get the Democrats to surrender almost any civil liberty-- indeed, to give the President just as much unchecked power as he might obtain under a Republican controlled Congress-- simply by playing the fear card repeatedly and without shame. And this the Republicans did with gusto in the past few days, with one Senator even suggesting that America would immediately be attacked if the President was not given everything he wanted, no matter how unnecessary the demands, and no matter what alternatives were available.

When the Republican-controlled Congress passed the abomination called the Military Commissions Act of 2006, I criticized Democrats who failed to block it, calling them spineless and cowardly. At least then the Democrats had the defense that they were in the minority. One can hardly say that now. They control both houses of Congress. If anyone could stand up to the President, you would think it would be a political party that had not one, but two separate chances to push back. Indeed, how difficult should it be, you might well ask, to say no to a lame duck President with 28 percent approval ratings? What is the political cost to forcing this spoiled child to compromise?

Behind the current events is a more troubling trend. As Sandy Levinson and I have written, we are in a gradual transition from a National Security State to a National Surveillance State. We pointed out that although the Republicans got first crack at constructing many features of this emerging state, it would be a bipartisan effort. The only issue will be what kind of national surveillance state we would have, and whether government would put in place the appropriate checks and balances to protect civil liberties, prevent the multiplication of secret laws and secret methods of enforcement, and restrain an increasingly ambitious executive.

So far the answers to this question have not been reassuring. Whether controlled by Republicans or Democrats, Congress seems willing to bestow more and more unaccountable power to the President of the United States. The Democratic Party, which has long prided itself on its support for civil liberties, seems altogether to have lost its soul, and the Republican Party, which long contained a strong element of libertarianism and respect for individual freedom-- particularly in economic matters-- has given up any claims to providing a counterweight to a deluded and incompetent President.

The Republican Party of the future appears to be Rudy Giuliani's party-- waving the bloody shirt of 9/11 and making increasingly extreme assertions about the need for concentrating unaccountable power in the executive. This is the Party of Fear. The Democratic Party of the future appears to be a pale reflection of the same, which, afraid of being thought weak, proves itself to be so by repeatedly surrendering our constitutional liberties in the name of a hyped-up and potentially endless state of emergency. This is the Party Without a Spine.

Between the Party of Fear and the Party Without a Spine, there does not seem to be much opportunity to keep the National Surveillance State benign. Nor does there seem to be any political check on the development of an increasingly authoritarian Presidency, which controls the levers of secrecy, surveillance, and military force.

Do not be mistaken: We are not hurtling toward the Gulag or anything that we have seen before. It will be nothing so dramatic as that. Rather, we are slowly inching, through each act of fear mongering and fecklessness, pandering and political compromise, toward a world in which Americans have increasingly little say over how they are actually governed, and increasingly little control over how the government collects information on them to regulate and control them. Slowly, secretly and imperceptibly, the mechanisms of government surveillance are being freed from methods of political control and accountability; and the liberties of ordinary citizens are being surgically removed under a potent anesthesia concocted from propaganda, fear, ignorance and apathy.

I hope the Democrats are justly proud of themselves for their cowardly contributions to this slow-motion destruction of our constitutional system.

Comments:

Professor Balkin:

Conversely, the new bill shows that the Republican Party can get the Democrats to surrender almost any civil liberty...

What civil liberty of yours have the GOP and a minority of the Dem caucus "surrendered" by voting for this FISA reform?

I have posited this question on nearly every thread on this bill for the past couple days and have not received an answer from the several professors and respondents who have bemoaned the loss of some undefined rights.

Based on all that has been reported on the TSP and this bill, I do not see how I or any other US citizen have lost any civil liberty whatsoever.

Only some tiny fraction of one percent of the US citizenry could even theoretically call or be called from foreign telephone numbers captured from al Qaeda and its allies reportedly targeted by the TSP. I have a hard time imagining any one of those who post here would fall in this tiny group.

Even if one of use were to innocently call or be called by a captured foreign al Qaeda number, exactly what expectation of privacy would be have in such an international call? We do not have a reasonable expectation of privacy against a search of anything which crosses the international border so I do not see how we have one for international telecommunications with foreign al Qaeda telephone numbers.

It is long past time we regained some measure of proportion. I surrender far more of my privacy each time some email spam artist gets my email address than I have over the past six or so years the TSP has been in existence.
 

We are not hurtling toward the Gulag or anything that we have seen before. It will be nothing so dramatic as that.

Slouching towards 1984?
 

Bart, your faith that the government will never surveil anything but Al-Qaeda telephone numbers is touching.
 

I would add only that I hope the Republicans are likewise proud of their contributions toward encouraging the populace to be resilient and independent.
 

Mr. Depalma:

I think your views that only a "fraction on one percent of US citizenry could [...]fall in this tiny group" fails to take into account the legal justification of the Executive. Our President has promulgated a legal doctrine that essentially seems to say that he can do anything in the name of national security. And I don't mean to say "anything" as hyperbole. It is anything but. Our President, literally, seems to believe he can legally do any thing, take action, disregard any law, be it passed by the Congress, or part of the Constitution itself, in the name of what he, and he alone, believes is in the best interest of our national security.
 

I agree that this bill shows similar cowardice as the democratic acquiescence to the MCA, which was passed only a month before the 2006 midterm election (and disabused me of my hope that Hamdan signaled a permanent change). However, the key difference is that this bill expires in six months. It seems that if the president is asking for emergency legislation for national security purposes, passing temporary legislation while the issue is explored more thoroughly is not irresponsible. Of course, it is hard to trust anything this president says. Hopefully six months from now the democratic party will show some spine.
 

I can't understand why people are so surprised by this. I think it's been pretty obvious for quite some time (at least since January, when it became crystal clear) that a sizable faction within the Democratic party is not interested in curtailing the (excessive, abusive and near-dictatorial) powers of the executive, they are interested in seizing them for themselves, probably in Jan 2009.

This also explains why impeachment is (and probably always has been) 'off the table'. Impeachment, at least theoretically, would force the Dems not only to hold Bush constitutionally and statutorily accountable for the abuses of his administration, but in the process shrink the presidency back down to its constitutional (and democratic, rule of law abiding) size.

I just can't imagine that Hillary Clinton prefers a severely weakened institutional position to the one she stands to inherit now, complete with its $1 trillion Pentagon, ever-expanding national security/police/surveillance state and unchecked, carte blanche imperial powers in foreign affairs.
 

The law's failure to lay a foundation for accountability to Congress is particularly puzzling, but revealing.

In the House debate just one Congressman alluded to the bill's failure to require the DNI to keep a running record of how many US persons were spied on and report to Congress. Even he failed to link this gap to the need for legislative oversight and re-evaluation down the road (without a repeat of what just went on). The useless Gang of Eight, the endless stonewalling, the reliance on newspapers to tell us what our government is doing -- none of these were spoken to.

I was stunned. The oversight function and the means and scope of intelligence gathering are easy to separate, hard to demagogue. A line in the sand could have been drawn, in negotiations and then on the floor. At worst they'd have come away with a strong talking point, an ability to say they fought the good fight, and a caret in the law for future reference.

I can only conclude that when push came to shove the Democrats didn't feel all that entitled to know what goes on. That's for the party that keeps us safe, the one that's tough enough to make life-and-death calls. The "24" guys.

I agree with Professor Balkin that a nominal two-party system will persist, at least for a while. It's tolerable. The strong party sets the corporatist agenda and gives it the needed administrative push. The weak one can take the wheel on the straightaways. It can also serve as a whipping boy for the true believers, as an outlet for the malcontents, and to legitimate the other under a democratic rubric.

Some rough going belies the system's unreality, so an occasional clash is helpful. It matters less and more and more is decided in markets and by those who shape them. Politics into window-dressing. Most think of themselves not as citizens but as participants in one or another market, where a deal's a deal.

Good night.
 

Jeffrey, supra:

"Our President has promulgated a legal doctrine that essentially seems to say that he can do anything in the name of national security."

Well, if that's so, then it doesn't matter what this bill says, does it?

But I wonder whether you or Professor Balkin or anyone else would be kind enough to answer the question that Bart asked: Exactly what civil liberty have we lost under this legislation? Or, to put it another way, what is it, exactly, that you object to in this bill? Please cite any section to which you refer.

For my own part, I am trying to understand liberal objections to this bill. And you might well persuade me that it's dangerous. But you must be specific.
 

Paul, see Marty's analysis in the previous posts. In addition, consider the following problems:

Section 105A redefines "electronic surveillance" so that even if a U.S. person is affected, as long as the electronic surveillance is "directed" at someone else "reasonably believed" to be outside the U.S., it is defined not to be "electronic surveillance" and FISA does not apply. No showing of a connection to Al Qaeda or terrorism or crime is necessary under these conditions. In essence, it means that if you speak to someone outside the U.S., the government can listen in on the conversation. The Fourth Amendment may limit some of this (I would argue that it should), but the actual jurisprudence of the 4th amendment on these questions has been limited after FISA on the assumption that Congress had taken care of the problem.

Section 105A is just breathtaking in the scope of what it allows the government to do, all by redefining lots of electronic surveillance not to be "electronic surveillance" under the meaning of FISA.

Section 105B adds an additional exemption. It allows one year surveillance programs at the discretion of the Attorney General (i.e. Alberto Gonzales, that most reliable and truthful of public servants). These programs would involve collection of information "concerning" persons reasonably believed to be outside the U.S. (as opposed to surveillance "directed at," which is taken outside of FISA altogether). This surveillance could actually be directed at U.S. persons inside the U.S., as long as it "concern[ed]" persons believed to be outside the U.S., again with no requirement of showing of terrorism, or criminality. The government need not specify the "specific facilities, places, premises or property" at which the surveillance will be directed. Courts reviewing the program under section 3 to determine whether some of the surveillance actually is "electronic surveillance" as redefined in section 105A is restricted to asking whether the Attorney General's claims are "clearly erroneous."

Section 105B thus threatens the rights of U.S. persons who might have surveillance directed at them (because the surveillance is concerning a person reasonably believed to be overseas), and other U.S. persons whose conversations are caught up in a program subject only to a clearly erroneous standard.
 

As to the "six months" deal, that doesn't wash, even if we trust that it will sunset (dubious in an election year ...see also, Patriot Act).

It is unclear if there was some compelling need for this legislation, in part given the secrecy of the ruling that appears to have been a major catylyst, but various safeguards and so forth could have been added to it. It was not this or nothing.

As to Paul's comment, have you read the posts (with comments) from the past few days? It seems the problems of the bill have been discussed.

Likewise, I note the "liberal" flag. As with the Patriot Act, many conservative leaning civil libertarian sorts were also upset. I note btw libertarian hero Ron Paul didn't vote. If I was a fan, I would be annoyed at that.

Finally, the article linked is troubling in that it focuses on "foreign suspects," without pointing out a major concern is that said "suspects" (vague in itself btw) interact with American citizens, so our communication as well is at stake.

A failure to note such basic facts misleads the public.
 

A comment was made respecting no expecation of privacy re matters going over int'l borders.

If this was actually true, it would be outrageous. I would have no expecation of privacy if I mailed a letter to a spouse in Canada ... if the gov't opened my mail, no problem. Likewise, if I talked to her, they can monitor the call, and do whatever with it. No expecation of privacy at all.

It's useful, putting aside the source of the claim, to underline the fact. Replace call with email, the concern remains. Finally, it is useful to compare this with another typical border search -- airports. We are there when they search (and communications can be more intimate than luggage).

This is quite different from the mass mostly secret process going on here. Again, it's useful to underline the point, since some seem to not quite get it.
 

Jack: Great post. One quibble: You write that "Section 105B adds an additional exemption" from FISA -- on top of the broad 105A exemption. I'm not sure that's right. In order to satisfy 105B, the acquisition must, to begin with, *not* "constitute electronic surveillance." 105(b)(A)(2). The most likely way in which it wouldn't be ES is if it is exempted under 105A. There might be other ways, too, but they're already outside FISA (which only regulates "electronic surveillance").

Therefore, I *think* (nothing, of course, is certain w/r/t legislation passed in the dead of night without hearings and public deliberation) that 105B and 105C are designed to be the "checks," the limits, on 105A. As I've written below, they're pretty pathetic checks. But I'm not yet convinced that they actually *expand* authority outside FISA.

On the other hand, 105(b)(A)(2) is a strong cue as to just how broad 105A is. The bill contemplates only that "a" significant purpose of the acquisition is to "obtain foreign intelligence information" -- something that one would think is true almost by definition if the surveillance is "directed at" someone overseas. (Perhaps it means to exclude surveillance "directed" wholly at U.S. persons overseas, i.e., to keep such surveillance under FISA.)

This suggests that 105A surveillance can have other purposes, as well -- other significant purposes, even -- including obtaining communications occurring in the U.S.

If I'm right about this, then the worst thing about 105B and 105C, other than their toothlessness, is that they provide a *very* capacious gloss on 105A.
 

I have to go with Karl on this; Why the suprise? The modern Democratic party just doesn't have much interest in anything that would limit the power of government. Power in the hands of Democrats is seen as an unalloyed good, power in the hands of Republicans as a momentary abberation, soon to be transfered to the former hands.

And "civil liberties"? Hm, right to keep and bear arms, anyone? Property rights? The record of the Democratic party on "civil liberties" has never been more than mixed, at best, despite the liberal effort to pretend otherwise by defining away any civil liberties they wish to violate.
 

A (technical) question concerning the law:

I was reading the text of the statute here

SECT. 5 details the amendments to FISA. It says that 50 U.S.C. 1803(e) is modified and then lists several modifications. However, I cannot find section 1803(e), which doesn't appear to exist. Section 1803 concerns "Designation of judges" under FISA, but there is no subsection (e), only subsections (a) through (d)!

Here is the link to the USC collection at Cornell, which I (perhaps wrongly)assume is up-to-date. So my question is, what is in 1803(e) and what was modified?

Note: I am not a lawyer so if this is a stupid question, feel free to point it out to me.
 

Keith: 1803(e) was added by the PATRIOT Act renewal last year:

(e)(1) Three judges designated under subsection (a) who reside within 20 miles of the District of Columbia, or, if all of such judges are unavailable, other judges of the court established under subsection (a) as may be designated by the presiding judge of such court, shall comprise a petition review pool which shall have jurisdiction to review petitions filed pursuant to section 501(f)(1).

(2) Not later than 60 days after the date of the enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005, the court established under subsection (a) shall adopt and, consistent with the protection of national security, publish procedures for the review of petitions filed pursuant to section 501(f)(1) by the panel established under paragraph (1). Such procedures shall provide that review of a petition shall be conducted in camera and shall also provide for the designation of an acting presiding judge.
 

Enlightened Layperson said...

Bart, your faith that the government will never surveil anything but Al-Qaeda telephone numbers is touching.

That is not the issue. The issue is whether this FISA reform, which apparently takes the TSP out of FISA, represents any loss at all of your civil liberties.

Can you give me any evidence that it does?
 

Remember the good old days when Republicans went apeshit that Hillary got her hands on FBI files?

I do. I was one of them!

Now look at the power they just gave this fool and our next president!? A final irony-thats probably Hilary herself!!!
 

JB,

Thank you for your answer.

Before posting my first comment, I did read Marty Lederman's informative entries. But they struck me as neutral descriptions of the bill; they didn't seem to advocate a policy view, and I found nothing alarming in them. But perhaps I missed something, or misread him. (Professor Balkin's remarks in this entry are conclusory.)

If I understand you correctly, you're saying that sections of this bill create a gaping loophole through which large volumes of warrantless surveillance might pass. Or, to put it another way, you're saying that the bill provides no meaningful checks against the potential for abuse.

Am I right? Is that what you're saying?
 

martin said...

Remember the good old days when Republicans went apeshit that Hillary got her hands on FBI files?

I do. I was one of them!

Now look at the power they just gave this fool and our next president!? A final irony-thats probably Hilary herself!!!


This Elephant is more than willing to grant a future President Clinton her full CiC powers to collect intelligence against the agents of al Qaeda and its allies. Indeed, I would criticize her not for using her CiC powers, but rather neglecting her duties to defend the nation by using these powers as her husband did in the 90s.

What I was and am still unwilling to do is allow Mrs. Clinton to abuse the confidential results of FBI investigations to dig up partisan dirt on political opponents.

For the life of me I cannot see the analogy between the TSP intelligence gathering on the enemy and reviewing FBI files on nearly 1000 political opponents in the WH basement.
 

This comment has been removed by the author.
 

Some talking points keep focusing on al Qaeda and the "TSP," which is not even what is at issue today. To whatever extent that ever existed, either as an unauthorized "program" or a rhetorical chimera, it expired about six months ago.

The issue in this legislation is not the TSP, or al Qaeda, or terrorism in general or even foreign powers in general, but is much more sweeping. The bill covers whatever the executive branch deems to be "intelligence information." That does not exclude any private, political, religious or commercial communication between anyone abroad and anyone in the United States, AFAIK.
 

Paul: Marty Lederman's informative entries ... struck me as neutral descriptions of the bill; they didn't seem to advocate a policy view, and I found nothing alarming in them.

Then, Paul, you have considerably more trust in the good faith and good behavior of our government, regardless of who is in office, than the founders of this country. Because Marty said:

"The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas."
 

"For the life of me I cannot see the analogy between the TSP intelligence gathering on the enemy and reviewing FBI files on nearly 1000 political opponents in the WH basement."

I know you can't grasp that analogy. I believe you. That inability is what makes you an unwanted troll on this site.
 

"I know you can't grasp that analogy. I believe you. That inability is what makes you an unwanted troll on this site."

Or possibly it's a poor analogy. So far I see polite questions about this bill and why you feel its trashing the constitution. That is a troll to you? Are only people with the "correct" viewpoint allowed here?
 

I find it odd that the GOP is tagged as The Party of Fear when that is all the Dems have had to sell since about '72 - fear of guns, fear of religion (except for shamanisti and animist ones), fear strong opinions, fear of themselves.

Joe Lovell
subdjoe@sonic.net
 

"'Our President has promulgated a legal doctrine that essentially seems to say that he can do anything in the name of national security.'

"Well, if that's so, then it doesn't matter what this bill says, does it?"

Well, it does in that now Bush can say, "See, even the Democrats support me."

The Democrats have to be the Stupidest People in America to go along with this.

They just cut their own balls off, since now they won't be able to say Bush overreached on this surveillance shit. The Republicans will just turn around and say, "Hey, you voted for it, too."

Smooth move, Democrats. Idiocy like this is the reason the election next year is not Democratic lock a lot of people think it is.
 

Professor Balkin,
My question does not relate to the particulars of the bill, but the context. If I understand this correctly, the bill retroactively "legalizes" procedures that were going on that were on their face illegal. These were the discussions we were seeing a few weeks ago in the senate with Attorney General Gonzalez. Did the Democrats in congress retroactively legalize what should have been an impeachable offense? And if so, isn't this the more dangerous aspect of the bill, because as was noted before, under the unitary executive theory and because of the president's apparently limitless commander in chief powers, and because the war on terror stretches to American soil, the president could already do whatever he wanted in regards to the war on terror and surveillance. Could you help me to understand this aspect of the bill a bit more, and its implications?
 

JaO said...

The issue in this legislation is not the TSP, or al Qaeda, or terrorism in general or even foreign powers in general, but is much more sweeping. The bill covers whatever the executive branch deems to be "intelligence information." That does not exclude any private, political, religious or commercial communication between anyone abroad and anyone in the United States, AFAIK.

JaO:

How do you propose to limit the subject matter of surveillance of a target telephone number? Warrants are based on the probable cause that criminal activity will be discussed at some point on the telephone, not that criminal activity alone will be discussed. Indeed, during every surveillance under a warrant of which I am aware, actual discussion of criminal activity is a tiny percentage of what are otherwise innocent everyday discussions.

You also note that the Executive makes the decision of what is actionable intelligence as if this is something new. The executive has always decided what is actionable intelligence because that is their job. Neither Congress nor the FISC ever claimed to make that decision.
 

I find myself sick at heart and almost physically ill at this latest example of how far our country has strayed from its constitutional principles. The amendments to FISA allow such broad surveillance with such little oversight as to be completely unreasonable under the Fourth Amendment. The right to be free from unreasonable searches and seizures IS a civil liberty. Courts have held FISA to be constitutional because of its many protections -- including necessary findings by the Foreign Intelligence Surveillance Court that there is probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power. There is no such restriction here. Moreover, there is no requirement that the government identify a particular facility -- e.g., phone number -- or place at which surveillance is to occur. And the warrantless surveillance may be directed ANY person believed to be outside of the U.S. So, if I travel to Canada, and the government certifies that a significant purpose of the surveillance is the collection of foreign intelligence information, this new law enables the government to listen to my phone calls without a warrant.

As another commenter noted, this bill does not limit itself to the TSP, or to foreign-to-foreign communications. It is much broader than that.

Perhaps even more important than what the bill allows is how little debate and consideration went into it. The Administration has been pushing for FISA "modernization" for years, with little success. But this bill was passed at the eleventh hour before Congress recessed without any real consideration of what it does and does not allow.

With this law, as with the Military Commissions Act, and the use of torture in violation of the Geneva Conventions, and many other strong arm tactis, we are fast becoming a police state where constitutional rights take a backseat to unchecked presidential power.
 

Concerned Citizen:

Please tell this concerned (liberal) citizen what you understand "police state" to mean. I'm fairly beside myself over this administration's overreaching, but the suggestion that we're fast becoming a police state seems hyperbolic. So set me straight.
 

The old FISA in itself is questionable as to being constitutional. Secret Court? As shaky as FISA was, what with searches allowed and the warrants gotten later, it at least was under the supervision of judges. The revisions remove much of that "secret" judicial oversight.

How many convictions or even trials have resulted from the warrantless searches? None that I know of and I don't expect there will be. That would bring the entire Act under question and its constitutionality into the legal system.

The Bush administration doesn't even follow FISA, expanded or otherwise. There is no enforcement of the Act's penalties for those who have violated it, even when openly admitting it was violated.

It is a Fascist mockery of the US legal system and the US constitution. Without enforcement of penalties for abuse the government can do anything they please and they are.

Moronic statements "like it doesn't affect me" don't hold water. It is like saying freedom of the press doesn't matter because you can't read.

FISA was enacted because of political abuse under Nixon. It wasn't written to enable foreign surveillance but to penalize those who use government resources to illegally violate the privacy of Americans.

The only change needed in FISA, other than clarification of foreign to foreign communications that cross US territory, was enabling and REQUIRING the FISA court to bring contempt of court charges resulting in the prosecution of those who violate the Act and conduct warrantless searches in America. Without the teeth to enforce the Act it is meaningless. It but gives the false impression that American Constitutional rights are being protected when they are not.
 

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