We've Lost the Battle - But the War Must Go On

So. A travesty of a surveillance bill has passed. The Powers that Be seem to expect the furor to die down now that the FISA amendment's a done deal. Some former defenders of civil liberties might buy the argument that "I'm not a terrorist, I don't talk to terrorists, so FISA ain't nuthin' to me!" Others contort themselves to find reasons why the new bill isn't a total "Fuck you!" to the Fourth Amendment.

It would perhaps be beneficial to point out that you're all utterly fucking wrong. There are tremendous good reasons not to let Wednesday's vote go unchallenged.

First, let's have a look at what broad spying powers have been used for in the past (emphasis added in all):

From Wikipedia's COINTELPRO article:

The Final report of the Church Committee concluded:

"Too many people have been spied upon by too many Government agencies and too much information has been collected. The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power. The Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone "bugs", surreptitious mail opening, and break-ins, has swept in vast amounts of information about the personal lives, views, and associations of American citizens. Investigations of groups deemed potentially dangerous -- and even of groups suspected of associating with potentially dangerous organizations -- have continued for decades, despite the fact that those groups did not engage in unlawful activity. Groups and individuals have been harassed and disrupted because of their political views and their lifestyles. Investigations have been based upon vague standards whose breadth made excessive collection inevitable. Unsavory and vicious tactics have been employed -- including anonymous attempts to break up marriages, disrupt meetings, ostracize persons from their professions, and provoke target groups into rivalries that might result in deaths. Intelligence agencies have served the political and personal objectives of presidents and other high officials. While the agencies often committed excesses in response to pressure from high officials in the Executive branch and Congress, they also occasionally initiated improper activities and then concealed them from officials whom they had a duty to inform.

Governmental officials -- including those whose principal duty is to enforce the law --have violated or ignored the law over long periods of time and have advocated and defended their right to break the law.

The Constitutional system of checks and balances has not adequately controlled intelligence activities. Until recently the Executive branch has neither delineated the scope of permissible activities nor established procedures for supervising intelligence agencies. Congress has failed to exercise sufficient oversight, seldom questioning the use to which its appropriations were being put. Most domestic intelligence issues have not reached the courts, and in those cases when they have reached the courts, the judiciary has been reluctant to grapple with them."[17][18]

From Bill Moyers's journal, regarding Project Shamrock:

One important program brought to light by the Committee was Project Shamrock — domestic surveilliance that was subsequently prohibited by FISA. Shamrock was a NSA surveillance program stretching from 1947 to the mid-70's that involved the copying of telegrams sent by American citizens to international organizations. L. Britt Snider, former CIA Inspector General and council on the Church Committee, describes the project he was tasked to investigate:

Every day, a courier went up to New York on the train and returned to Fort Meade with large reels of magnetic tape, which were copies of the international telegrams sent from New York the preceding day using the facilities of three telegraph companies. The tapes would then be electronically processed for items of foreign intelligence interest, typically telegrams sent by foreign establishments in the United States or telegrams that appeared to be encrypted.

Shamrock actually predated the NSA, which was created by President Truman in 1952, and began as a continuation of censorship efforts conducted by the the Army Security Agency during WWII. As Fritz Schwarz explains to Bill Moyers, the program began with benign intentions, yet, "if you have secrecy and lack of oversight, you're going to get abuse." By the time the hearings began, many estimate the NSA was analyzing 150,000 messages a month.

And then there's the Huston Plan:

The Huston Plan was a 43 page report and outline of proposed security operations put together by White House aide Tom Charles Huston in 1970. It first came to light during the 1973 Watergate hearings headed by Senator Sam Ervin (a Democrat from North Carolina).

The impetus for this report stemmed from President Richard Nixon wanting more coordination of domestic intelligence in the area of gathering information about purported 'left-wing radicals' and the anti-war movement in general. Huston had been assigned as White House liaison to the Interagency Committee on Intelligence (ICI), a group chaired by J. Edgar Hoover, then Federal Bureau of Investigation (FBI) Director. Huston worked closely with William C. Sullivan, Hoover's assistant, in drawing up the options listed in what eventually became the document known as the Huston Plan.

Among other things the plan called for domestic burglary, illegal electronic surveillance and opening the mail of domestic "radicals". At one time it also called for the creation of camps in Western states where anti-war protesters would be detained.

The American Prospect points out another delight in the surveillance smorgasboard:

It's important today to recall that the object of much of the Church committee's investigation were the abuses the CIA and other intelligence agencies inflicted on Americans here at home. They included the Huston Plan, a proposal to have the agencies infiltrate and disrupt student and other dissenting organizations; Operation HT Lingual, in which the CIA had for 20 years been opening the mail that Americans (including Richard Nixon and Hubert Humphrey) had sent to the Soviet bloc; and other operations that kept files, ran wiretaps, and performed medical experiments on U.S. citizens.

Now. Tell me again how giving the government broad, unchecked spying powers is something no law-abiding citizen should ever worry about.

"But Dana!" some of you will undoubtedly wail. "Things are different now. FISA still stands - in fact, Barack Obama himself said that this new law 'restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.' How could Obama-wan be wrong?"

To which I reply, "Glenn Greenwald knows."

And it's only gotten worse since more information has come out:

In the podcast, Jaffer details exactly what warrantless surveillance powers the new FISA bill vests in the President, along with the reasons they are so pernicious. He underscores the extraordinary fact that the surveillance program implemented by Congress yesterday does not merely authorize most of the President's so-called "Terrorist Surveillance Program" that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the "target" of the surveillance have any connection whatsoever to Terrorism, nor is there any requirement that the Government believe the "target" is an agent of a foreign power or terrorist organization, or even guilty of any wrongdoing at all. As Georgetown Law Professor Marty Lederman wrote today (emphasis his):

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.

Those claiming that this new FISA law is just some sort of innocuous or mild extension of the Government's surveillance powers under the old FISA law should listen to Jaffer's extremely clear and detailed explanation of what this law really is, how invasive the powers it creates are, and why it tramples on core Constitutional protections. The podcast can be heard here.

Scary enough, but of course there's more. Russ Feingold knows more about the illegal spying program this law is designed to enshrine than we ever will. And he has nothing good to say about this:

I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans.

And as if that's not enough, I've got a cherry to put on top:

And then there is the entire, unresolved matter of what James Comey was describing when he said that the spying activities in which the Bush administration was engaged for years were so patently illegal and unconscionable that even he, John Ashcroft and FBI Director Robert Mueller -- right-wing ideologues all who approved of the lawless "Terrorist Surveillance Program" -- all threatened to resign en masse if those still-unknown activities continued.

Can you imagine how bad that had to have been? These aren't leftist ACLU-loving civil libertarians we're talking about here - quite the opposite - and even they couldn't stomach what Bush was getting up to. Those lawsuits that just got shut down by retroactive immunity were our best chance of finding out just what was done in the name of national security.

Digby has a chilling conclusion to make:

We will have no way of knowing if or how they are using these powers to "preserve the nation" (In the days after 9/11 we know for a fact that they did use them to monitor dissenters.) Presidents will undoubtedly be tempted to use them for political purposes under that doctrine, just as Nixon did, if the populace ever becomes that vociferous again. Who knows what "preserving the nation" will mean next time?

Whatever doesn't kill the authoritarian beast only makes it stronger. We'll be dealing with the fallout from this for yet another 30 years. Indeed, this time it may just stick forever.

We ain't letting it.

No fucking way.

The ACLU filed suit against the new law within an hour of Bush signing it. You can show your whole-hearted support for their effort to derail this travesty of a bill by pledging a small monthly donation here. You can sign their newspaper ad here.

The Electronic Frontier Foundation is also filing suit on a complimentary front. Support their efforts here.

And you can join me and my Stange Bedfellows in bed here.

Trust me in this. We can make a difference. We just have to make enough of a ruckus so that we're impossible to ignore.

Our civil liberties depend on it.