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The Collective
Saturday, August 4, 2007
By Dr. Steven Taylor

Via WaPo: Senate Votes To Expand Warrantless Surveillance

The legislation, which is expected to go before the House today, would expand the government’s authority to intercept without a court order the phone calls and e-mails of people in the United States who are communicating with people overseas.

As currently written, the Foreign Intelligence Surveillance Act already gives U.S. spies broad leeway to monitor the communications of foreign terrorism suspects, but the 30-year-old statute requires a warrant to monitor calls intercepted in the United States, regardless of where the calls begin or end.

At the White House, where officials had voiced concern about that requirement, a spokesman praised the Senate vote and called on House leaders to quickly follow suit. The legislation will “give our intelligence professionals the essential tools they need to protect our nation,” spokesman Tony Fratto said.

That is, of course, the catch-all explanation and justification for just about everything these days. And, of course, they can’t really explain how it works, who might get caught or if these kinds of programs have actually provided real, actionable or otherwise significant intelligence because that would tip off the enemy-as such we aren’t to worry our pretty little heads about such details. While I actually do understand that they can’t go into all the specifics, I am highly unconvinced that a) that there isn’t a way they couldn’t do a better job explaining to us what they are doing, and b) that these programs have been as successful as has been claimed. Sorry, but “trust us” has never been my favorite explanation and this administration in particular burned that bridge some time ago.

In regards to Democratic voters who thought they were getting change out of the new Congress, I suspect that the Majority Leader’s words will sound a tad hollow:

“My Republican colleagues chose to rubber-stamp a flawed administration proposal that fails to provide the accountability needed in the light of the administration’s past mismanagement of key tools in the war on terror,” said Senate Majority Leader Harry M. Reid (D-Nev.).

Last time I checked, Reid was the Leader and the Senate was in Democratic hands. I am not sure, therefore, that Reid can peg this on the Republicans, per se. Some of those 60 “yes” votes came from the Democrats-not to mention that if the majority really wanted to find a different solution, they could have worked a little harder at it.

In all honesty, it is rather stunning that they actually have voted here not just to continue a controversial program, but to expand it:

Privacy advocates accused the Democrats of selling out and charged that this bill gives the government more authority than it had under a controversial warrantless wiretapping program begun in secret after the 2001 terrorist attacks. Under that program, the government could conduct surveillance without judicial oversight only if it had a reason to believe that one party to the call was a member of or affiliated with al-Qaeda or a related terrorist organization. This bill drops that condition, they noted.

The only saving graces are that the legislation, as currently written, requires legislative review in six months and apparently does seek some controls over certain activities:

White House and intelligence officials have sought a broad overhaul of the act to allow spy agencies to listen in on terrorism suspects quickly, without having to apply for a court order, as is required for surveillance that targets U.S. residents. But Democratic leaders say the administration’s proposals could lead to broad searches of phone calls and e-mails by ordinary Americans without judicial review.

I know many of my readers, and many, many citizens will find any concerns about the government and surveillance to be unfounded. After all, this is just the government trying to keep us safe, right? However, I would submit to you all that in the grand scheme of things it is always more likely that human being are more likely to make mistakes and abuse powers than they are to do precisely what they ought. As such, the more we empower the federal government in these matters, the more we allow for some monumental errors to take place. This is, after all, the administration that held a US citizen, captured on US soil as an “enemy combatant” for years without charges and without basic legal rights just because it thought it needed to do so.

And to appeal to the Reagan Republicans in the audience, I would note his famous quip: “The nine most terrifying words in the English language are, ‘I’m here from the government and I’m here to help.’” He was there speaking mainly of things like fiscal policy. The matters we are discussing here go well beyond how the government might spend tax dollars, but to how it treats its citizens.

As a slight digression, and as I ponder the politics of the situation, I wonder what hardcore Second Amendment types think about this kind of behavior. After all, they typically argue that one of the main reasons why they ought to be allowed to keep whatever weaponry they wish is to protect against tyrannical or abusive government. As such, that is a segment of the population that one would think would be concerned about expanded police powers in the hands of the federal government. However, I suspect that they are unconcerned, as they tend to also be stronger pro-defense (which is ultimately rather ironic, actually, as a stronger defense mechanism means a more powerful state that could more easily disarm the even heavily armed citizen.)

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Filed under: US Politics, War on Terror | |


  1. I was watching on C-span while the house debated this, and it shocked me that it passed, since when I watching it so many of the senators seemed to have such strong feelings against it. (I fell asleep before they voted). It seems like the Bush Administration is very effective at propagating fear, and that makes that last amendment seem like cold comfort.

    Comment by Toki-chan — Saturday, August 4, 2007 @ 12:43 pm

  2. The bipartisan agreement on this bill was that it would have to have 60 votes to move forward. In the end it got exactly 60, passing 60-28. That probably means that there were a few more Democratic ‘if needed’ votes for it that were cast against. My guess is several wanted to vote against a bill that passed.

    That puts the wails of anguish that came from the Senate earlier on this in a very political light. Easy to scream defiance about how the Bush administration was doing things, but when faced with the prospect of taking responsibility they whimpered.

    As far as political repercussions, this is a perfect example why so few presidents have come directly from the ranks of the Senate in modern times. Cautiousness is in the senatorial DNA. It’s hard for the cautious to lose their seat, but being blamed for actions that could have prevented bad things could do just that. Executives don’t have the luxury of remaining forever cautious.

    Comment by Buckland — Saturday, August 4, 2007 @ 8:19 pm

  3. I don’t think Steven’s last paragraph is even a slight digression. It goes to the heart of the matter. I just would drop the term, “pro-defense.” A massive state capacity for violence, like that for spying, is not about defense, per se, but about domination-whether of citizens of developing countries or our own. This fact was certainly recognized by Madison and other founders. We citizens have let our “leaders” conveniently forget that.

    As for the Senate vote, I suppose it is always useful to have reminders of why the two-party system is broken. Neither party stands for freedom or democracy, despite the constant use and abuse of those words by office-holders and office-seekers under both parties’ banners.

    Comment by MSS — Sunday, August 5, 2007 @ 11:07 am

  4. […] Jack Balkin, writing at Balkinization is rather unimpressed with the Congress’ behavior on the new FISA bill: 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. […] 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. […]

    Pingback by PoliBlog ™: A Rough Draft of my Thoughts » America’s Two Party System: “The Party of Fear, the Party Without A Spine” — Sunday, August 5, 2007 @ 1:59 pm

  5. I can’t help but think that some of the Democrat Senators were (perhaps subconsciously) calculating that the next President will be a Democrat and therefore, the bill was not as dangerous as it would be in the hands of Gonzalez/Bush.

    I’m not trying to excuse their vote, I’m just trying to understand it in all it’s wonderful dumbnitude.

    Comment by LaurenceB — Monday, August 6, 2007 @ 8:33 am

  6. I was very surprised that President Bush won this round. He’s had a free ride for so long, I guess I had forgotten his ability to get what he wants in a hostile political environment.

    Of course, Congress said one of the big reasons they voted for the bill was that the President threatened to take away their month-long vacation. That’s pretty petty. OTOH, I don’t know if the President really can force Congress to stay in session. It seems to me that Congress ought to be in charge of it’s own calendar.

    Comment by Max Lybbert — Monday, August 6, 2007 @ 11:00 am

  7. Well, hell, if you know anybody to call overseas, you are automatically suspicious, right. Real Americans don’t know foreigners.

    I follow the news, and the media presented this measure as if it were just to cover foreign-to-foreign communication when the switching was routed through the US. Once again, the media has let us down. And now they decry the injustice in their editorials instead of screaming foul on the front page.

    Looks like we’re going to have to raise hell for next 6 months to get them to back away from 1984.

    I saw THE BOURNE ULTIMATUM yesterday which is a major caution on unsupervised domestic spying; fiction often gets at the truth better than badly covered news stories. They point up the cameras on every street corner in Britain, for instance; Orwell knew it would start there. It will be here soon.

    Comment by John McMullen — Monday, August 6, 2007 @ 1:10 pm

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