What is the Truth and Full Story about the NSA Surveillance scandal that isn’t being reported anywhere else?
Well, in case you haven’t heard, a June 5th article by Glenn Greenwald in the UK Guardian purports to break the story on an NSA Surveillance scandal that per a FISA court warrant, Verizon is providing the NSA the metadata calling records of all of its customers to include originating number, destination number and date and time of the call. Not the actual calls themselves, just the metadata information about the calls.
Immediately you had a blowup of outrage in the media and the blogosphere that this was some kind of new and horrible thing against our privacy and fourth amendment rights by President Obama. Another take was that he had gone back on his promise to make a change on this from the Bush administration.
One of the problems with this so called scandal is that the reporting by Greenwald was woefully incomplete as to the history of this kind of surveillance and I am not just talking about the Bush administration aspect of it. Greenwald’s omissions in this latest article extend to his own prior coverage of NSA surveillance and to administrations before George W. Bush. Greenwald provided less than 15% of the facts that the public needs to be fully informed about what is going on here.
To really understand what this is about and whether the Obama administration did anything wrong in this situation, you have to start at the beginning. I mark the beginning as May 18, 1977, the day Ted Kennedy submitted the FISA bill to the Senate. The FISA bill, also known as the Foreign Intelligence Surveillance Act is describe in Wikipedia as prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" which may include American citizens and permanent residents suspected of espionage or terrorism. In practice, it sets up secret courts through which intelligence agencies can obtain warrants for surveillance of individuals and groups suspected of engaging in any kind of espionage and foreign sponsored or connected terrorist activities harmful to US National Security.
Six Democrats and three Republicans cosponsored the bill and it was signed into law by President Jimmy Carter October 25th, 1978.
Hearing about FISA in a vacuum without any other information would probably cause most people to believe that FISA has the strong potential to violate the fourth amendment protections against unreasonable search and seizure. In fact, FISA was created to strengthen the fourth amendment and I will explain how.
FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:
Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.
Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.
Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.
So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.
Now, let’s fast forward to the administration of George W. Bush.
After 9/11 President George W. Bush issued an executive order directing the NSA to start conducting wiretaps and other surveillance without a warrant via FISA or otherwise.
Many of us objected to the Bush administrations warrantless wiretapping program throughout Bush’s time in office. I wrote a number of articles attacking the practice including one in October of 2007 were I called for the Bush administration to go back to using FISA courts and suggested that the NSA, FBI and CIA should push back on any requests to perform surveillance without a FISA warrant.
Bush claimed that he had wartime powers to conduct warrantless wiretapping, but on March 31, 2010 a Federal Appeals court ruled NSA's warrantless wiretapping of an Islamic charity's lawyers in 2004 was illegal because it violated FISA and awarded that charity $2.5 million dollars in damages plus attorney’s fees. If you want to look it up, you will ironically note that the name of the case is Al-Haramain Islamic Foundation v. Obama because even though the warrantless surveillance took place in 2004, by the time the appeal came, Bush was no longer in office.
Speaking of which:
When campaigning for President in 2008, then senator Obama vigorously attacked President Bush’s warrantless wiretapping program and vowed to stop the practice. That is exactly what he did. President Obama returned to the policies before President Bush of using the Ted Kennedy and Jimmy Carter FISA law to obtain warrants wherever this kind of surveillance would be performed.
The other important part of history is that since the September 11, 2001 attacks, the kinds of wide-reaching surveillances of phone records, email and internet postings noted by Greenwald in his article of a few days ago has been constantly going on. This is not new. It has been reported on periodically including an article by Greenwald himself back in October of 2009. Greenwald penned an October 6, 2009 article in Salon titled “The joint Post/Obama defense of the Patriot Act and FISA: where he talks about the Obama administration’s use of FISA warrants that may or may not have led to the dismantling of a significant terrorist plot to bomb the New York City Subways.
There is an October 18 2007 article in NPR by Eric Weiner titled “The Foreign Service Intelligence Act: A Primer” that discusses the Bush administration’s desire not to have to get a FISA warrant to get wiretaps. A May 11 2006 USA Today article by Leslie Cauley is titled “The NSA has a massive database of Americans’ phone calls” and it talks about how what Greenwald reported a few days ago as some sort of revelation has been going on for twelve years.
My point by noting these articles, and there are hundreds, perhaps thousands more where they came from steadily since the end of 2001, is that this is not new stuff. It shouldn’t shock anyone. Journalists and pundits to include Greenwald himself shouldn’t be presenting what Greenwald wrote as new or shocking.
I’m really disappointed at my fellow journalists and pundits in general with the coverage of this story. When you understand the history of when and why FISA came into being and when you understand appeals court rulings regarding Presidential powers with regards to surveillance aimed at foreign directed entities and terrorist groups. When you understand those things and you combine them with the history since 9/11 of the Bush administration attempt to ignore FISA and wiretap without a warrant, a practice that the Obama administration has completely renounced, I think you are left with only one possible conclusion.
President Obama did nothing wrong and there is no scandal here, at least not in terms of the administration. The reporting of this issue by Greenwald and other journalists and pundits, well there you might have a scandal. The history and context matters and not providing those things in this situation completely alters the meaning of the story and is a veritable journalistic crime. Greenwald should be ashamed of himself, and many other journalists and pundits out there should also feel ashamed of themselves.
We can have a good national conversation about whether FISA should still be the law of the land. Understand though that if we repeal it and don’t replace it with anything, existing legal decisions and judicial review would mean that once again warrantless wiretapping ultimately aimed at foreign groups and terrorist organizations would be legal. Ted Kennedy and Jimmy Carter knew what they were doing when they created and passed FISA. Any law can be improved and FISA is no exception, but FISA is a big improvement compared to the situation before it was passed in 1978 and it is a big improvement over the Bush administration’s attempts to go back to warrantless wiretapping.
There is another point that I think we should note. The FISA warrant in question discussed in Greenwald’s article allows the NSA to collect phone records for three months, from April 25th until July 19th. I’m surprised no one has made the obvious correlation to how close the start date is to the Boston Marathon bombings which occurred in April 15th just ten days before. I’m making an educated guess here so you all can determine how much you think this makes sense to you, but it seems likely to me that in the wake of the Boston bombing, someone in the justice department asked the NSA to gather this information with the intent of finding patterns of telephone chatter between as yet undiscovered terrorist cells here in the US who might be discussing the bombing. The timing seems too close to be coincidence.
If true, it needs to be pointed out that Greenwald’s article certainly disrupted that effort.
Getting back to the Obama administration, I can envision what happened when President Obama took office in 2009. I’m sure there was a discussion with white house counsel and the Attorney General where national security surveillance was brought up and the President probably asked a question along the lines of “OK, we want to be better than the Bush administration was on this. We certainly don’t want to wiretap without a warrant. What is the constitutionally accepted remedy that respects the fourth amendment.” And the answer from any lawyer familiar with the law and the history of this issue would say the remedy is to go back to the law that Ted Kennedy and Jimmy Carter enacted to provide oversight over these kinds of activities. Go back to getting FISA warrants for them. In fact when Ted Kennedy died, the American Civil Liberties Union put out a glowing press release about him, saying:
The civil rights community lost one of its giants today. Senator Kennedy’s lifelong commitment to racial justice and the rule of law has been an inspiration to the ACLU and Americans everywhere,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “On a personal level, we will miss his wise counsel and encouragement in the ongoing struggle to preserve civil liberties. Senator Kennedy’s legacy will live on to inspire generations of civil libertarians to come.”
In this same press release honoring Kennedy, among the legislative accomplishments the ACLU praised from Senator Kennedy as protecting Civil Liberties was FISA. It’s therefore also disappointing to note that the ACLU is getting after President Obama for using… wait for it… yes, FISA.
Folks over at the ACLU, I love you guys, but you made a mistake here. It’s OK, you rarely make mistakes, you’re entitled to a few, this is definitely one of them and you are in good company. Most of the folks that consider themselves civil libertarians missed it on this one and failed to take into account the history and judicial decisions and review that frame this issue.
As the beginning of this segment I accused the coverage of this issue by my fellow journalists and pundits as woefully incomplete and I promised to give you all the full story and that once you heard it, you would think differently about this issue. Now that you have heard what I had to say, I hope you agree and I hope you all think I kept that promise. Feel free to let me know. Write to me at firstname.lastname@example.org and tell me what you think of this issue and my coverage of it.
We’ll be right back.