Senate Finally Holds Weak 'Debate' On FISA Amendments Act... But Terrorism!

from the and-therefore-we-shouldn't-even-know-what's-going-on dept

Thu, Dec 27th 2012 2:05pm — Mike Masnick

While some in the Senate tried to skip over debate of the likely unconstitutional FISA Amendments Act, the Senate finally held a rushed and scripted "debate" today, which did very little to actually explore the issues (and the Senate Chamber was mostly empty during the "debate"). Senators Ron Wyden and Jeff Merkley did their best to raise significant issues, but Senator Dianne Feinstein kept shutting them down with bogus or misleading arguments, almost always punctuated with scary claims about how we had "only four days!" to renew the FISA Amendment Acts or "important" tools for law enforcement would "expire." It turns out that's not actually true. While the law would expire, the ~~provisions~~ sweeping orders already issued would remain in place for a year -- allowing plenty of time for a real debate.

Furthermore, Feinstein continued to mislead (bordering on outright lies) about the FISA Amendments Act. While some of the proposed amendments focused on finally forcing the secret interpretation of the FISA Amendments Act to be disclosed, Feinstein held up the text of the bill and insisted there "is no secret law" and that "the text is public." That assumes that "the law" and "the text of the legislation" are one and the same. They are not. As Julian Sanchez notes, imagine that Supreme Court rulings were all classified, how would you interpret the Constitution? You could make guesses, based on what the law said, but without the court's rulings, you would not know what that meant in practice. That's exactly the situation we have with the FISA Amendments Act... and it's made even worse by the fact that those who have seen the still-secret interpretation -- such as Senator Wyden -- have made it clear that its quite different than what most people think the law says.

Even more ridiculous is that the text of the FISA Amendments Act has been set since September. There's been plenty of time to actually debate these issues. Hell, last year's renewal for just one year was conditioned on the promise from the Senate that there would be debate this year. Yet they wait until December 27th to hold this fake "debate" with Feinstein spreading FUD up and down about how not renewing this for another five years means the terrorists win? This is a really shameful display of Congress caving to law enforcement's almost certainly unconstitutional desire to be able to widely spy on almost any information it can get its hands on, so long as they claim collecting that info might possibly somehow help in discovering illegal behavior by non-US citizens.

What's amazing is that those supporting the renewal of the FISA Amendments Act continue to take it on faith that the law is not being abused, even as there's already been an admission that some of the activities violated the 4th Amendment (but no further evidence of what happened or how that would be prevented), and even other tools that we were told were "proven" and "crucial" to the "war on terrorism" later turned out to be expensive boondoggles that were no help at all. Senator Saxby Chambliss was particularly ridiculous in this discussion, insisting that because there was that admission earlier this year that the 4th Amendment was abused, it shows that "oversight is working." This ignores that no further exploration followed to see how widespread the abuse was. Again, Julian Sanchez highlights just how ridiculous this is by noting that the fact that the argument is completely tautological in saying that oversight works because abuse has been discovered.

Congress has both the mandate and the obligation to oversee how law enforcement is using its surveillance powers -- and yet many of its members, led by Senator Dianne Feinstein and Saxby Chambliss, appear to be abdicating that job due to OMG TERRRORISM!@#!@#!!

Update: And they just voted on Senator Leahy's amendment, which was a pretty simple one, just shortening the term of this extension from 5 years to 3 years. All it would do is require that the next debate on this happen sooner, rather than later, but it was voted down (52 to 38) by Senators who'd rather not even discuss the fact that they're allowing the NSA and other law enforcement officials to regularly violate the Constitution. Just punt that question as far down the field as possible, I guess.

Update: And, down goes another amendment. Senator Merkley's amendment would have "encouraged" that secret interpretations of the FISA Amendments Act made by the FISA court be made public (in redacted form). This seems like common sense, but the Senate voted it down (54 to 37) -- because, apparently they like secret laws which the public isn't even allowed to know about, even if it means the NSA can snoop on nearly all of their communications without a warrant.

Update: And there goes another one. Senator Rand Paul introduced an amendment clarifying that the 4th Amendment protects all of your communications. The Senate rejected it by an overwhelming margin, 79 to 12, because apparently protecting your privacy and upholding the 4th Amendment is not the kind of thing the Senate supports these days.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, dianne feinstein, fisa, fisa amendments act, jeff merkley, privacy, ron wyden, saxby chambliss

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Zakida Paul (profile), 27 Dec 2012 @ 2:28pm

Let's get this clear
War on terror = unwinnable and only gets you more enemies
War on drugs = unwinnable and only makes law enforcement look incompetent
War on piracy = unwinnable and only makes politicians look corrupt and the entertainment industries look greedy

Just think what the billions spent on these unwinnable wars could have been spent on - a decent healthcare system that looks after EVERYONE, a decent education system that brings the best out of EVERYONE, job creation programmes that benefit EVERYONE....the list goes on.
[ link to this | view in chronology ]
- John Fenderson (profile), 27 Dec 2012 @ 2:39pm
  
  Re: Let's get this clear
  Indeed. These three issues have done more to destroy respect for the law than anything I can think of in history outside of prohibition. On that basis alone, the government's stance on these issues is, itself, a threat to "national security".
  [ link to this | view in chronology ]
- gorehound (profile), 27 Dec 2012 @ 3:08pm
  
  Re: Let's get this clear
  I hope that I live long enough to see the Government fall.I do not care what people think of me for saying that.
  I am so sick of the Assholes I am thinking this Government must fall and hopefully a better thing will take its place.
  
  WE as a people are so screwed over by the schmucks in Politics.What hope is there to change the system ?
  [ link to this | view in chronology ]
  - The Mighty Buzzard (profile), 27 Dec 2012 @ 4:01pm
    
    Re: Re: Let's get this clear
    You just enumerated exactly why the founders wrote the 2nd Amendment.
    
    Some people say it's only meant for the militia and then declare that the militia means only the national guard. Some people think it protects their right to have weapons to protect themselves and their homes. They're both dead wrong.
    
    History lesson: when the 2nd Amendment was written we'd just finished using quite a lot of privately owned weapons to violently overthrow an oppressive government. You can bet your ass that this was heavy on their minds at the time, so the 2nd Amendment is there to make sure we are able to do it again if necessary.
    
    Keep that in mind next time you hear an argument about reducing us to bolt/lever action rifles, pump shotguns, and revolvers. Privately owned, people-killing, war-waging firearms are precisely why the 2nd Amendment exists.
    [ link to this | view in chronology ]
    - Pamela Anderson, 28 Dec 2012 @ 3:34am
      
      Re: Re: Re: Let's get this clear
      Whilst I agree with your interpretation of the 2nd Amendment, the likelihood that an armed militia could overthrow the government in the modern day is so small to be a mathematical impossibility. And that's before any other discussions such as whether such a militia would represent the majority, etc. So it's not going to happen. Not a chance.
      
      Which means the 2nd Amendment, as it is written, is useless. Essentially it now exists to protect a hobby.
      [ link to this | view in chronology ]
      - The Real Michael, 28 Dec 2012 @ 6:06am
        
        Re: Re: Re: Re: Let's get this clear
        Really? 80-100 million gun owners vs the government and you think the latter would win? *pfft* Good luck with that one. The government is clearly afraid of an armed public, hence why people like Feinstein keep pushing for more gun control. But you know what? These politicians travel around with armed security.
        
        "I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." - George Mason, Co-author of the Second Amendment
        
        "The Framers of the Bill of Rights did not purport to 'create' rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting." - William J Brennan Jr.
        [ link to this | view in chronology ]
        
        JohnnyRotten (profile), 28 Dec 2012 @ 7:32am
        
        Re: Re: Re: Re: Re: Let's get this clear
        Really? 80-100 million gun owners vs the government and you think the latter would win? *pfft* Good luck with that one.
        I'll ask the same question again:
        
        How many of the 80-100 million gun owners do you know of that have weapons can reach up 30,000 feet? Because the Fed has lots of weapons platforms that can reach down that far. You're delusional if you think any weapon that can be bought legally is a strategic or even tactical threat to the US Military.
        
        The US Military is designed to fight enemies with aircraft, warships, and armor exercised strategically through superior intelligence, mobility, and supply. Your hypothetical revolution doesn't get off the ground without force parity in all of these aspects.
        
        The day of the musket as great equalizer is long over. No gun vs gun pitched battle with a (the) modern military is going to work. It's not the number of weapons, it is the effectiveness of these weapons.
        
        The reality is that the 80-100 million gun owners would have little chance even against the assembled police forces of this country.
        [ link to this | view in chronology ]
        
        Monkey with Attitude, 28 Dec 2012 @ 8:09am
        
        Re: Re: Re: Re: Re: Re: Let's get this clear
        Except your expecting a piece meal battle of tanks vs tanks and planes vs planes, modern revolutions happen at the guerilla level/low level and for that you dont need heavy weapons / naval platforms. They help and make it longer but in the end usually fail (see Vietnam, Afghanistan, Iraq, ...)
        
        Now the other side that must be said, how many US military are going to knowingly invade a state or states in rebellion and kill fellow citizens? Sure you will find some, there are always people willing to put on Jackboots and march in lock step, but for every one you will get 4 that refuse or actively sabotage operations in favor of the insurgents....
        
        Final outcome is bloody/prolonged/and horrible to imagine and brought in by people that people put themselves above the people and truely believe they are the new Kings and Nobles... sad that humanity's basic thinking has not evolved beyound "its Mine, I have Rock, I know best"
        [ link to this | view in chronology ]
        
        JohnnyRotten (profile), 28 Dec 2012 @ 8:25am
        
        Re: Re: Re: Re: Re: Re: Re: Let's get this clear
        Modern revolutions are fought with indirect weapons such as mines, booby traps, etc. See Vietnam, Afghanistan, Iraq. Any time that the insurgents tried a stand up battle, they were wiped out. See Vietnam, Afghanistan, Iraq. Your 30-06 is of extremely limited value in an insurgent war. 80-100 million of them get you nothing against C-130 gunships, drone platforms, Apaches, Tomahawk Missiles, artillery, etc.
        
        The US isn't Vietnam, Afghanistan, Iraq when it comes to layout. We have a highly centralized, easily controlled population (supplies of food, water, and power come from very distinct and easily controllable areas). The unlimited surveillance abilities of the US Military make it impossible to directly assemble and move large numbers of people without being wiped out.
        
        For the "how many US military are going to knowingly invade a state or states in rebellion and kill fellow citizens" question, the US Military vs the population isn't my juvenile fantasy, so I'm not defending it or the possibilities of it occurring. I'm only pointing out how silly the gun owners vs the US Military meme is.
        [ link to this | view in chronology ]
    - Pamela Anderson, 28 Dec 2012 @ 3:38am
      
      Re: Re: Re: Let's get this clear
      Oh, and if there is enough passion to form a militia, then surely they'd be enough passion to vote somebody new into government?
      [ link to this | view in chronology ]
    - Anonymous Coward, 31 Dec 2012 @ 8:40am
      
      Re: Re: Re: Let's get this clear
      At the time it was written the 2nd Amendment guaranteed the right to bare the most advanced infantry weapons on the planet.
      [ link to this | view in chronology ]
- Jesse (profile), 27 Dec 2012 @ 8:02pm
  
  Re: Let's get this clear
  Communism!
  [ link to this | view in chronology ]
Anonymous Coward, 27 Dec 2012 @ 2:49pm

When the system has failed, it's time to take down the system.
[ link to this | view in chronology ]
- John Fenderson (profile), 27 Dec 2012 @ 2:52pm
  
  Re:
  Or fix it.
  [ link to this | view in chronology ]
  - Zakida Paul (profile), 27 Dec 2012 @ 2:53pm
    
    Re: Re:
    It's beyond fixing.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 27 Dec 2012 @ 3:14pm
      
      Re: Re: Re:
      I disagree. The US has been through darker periods than this when it comes to all of these issues, and came out of it. I don't see why this time is any different.
      
      But if you're right, then we're all doomed anyway. Revolutions are more likely to result in a worse government than a better one.
      [ link to this | view in chronology ]
- Will, 27 Dec 2012 @ 3:12pm
  
  Re:
  Enjoy your prison time buddy.
  [ link to this | view in chronology ]
- Anonymous Coward, 27 Dec 2012 @ 3:27pm
  
  Re:
  Don't Americans have a constitutional duty to take down their government once it no longer serves the interest of its citizens?
  [ link to this | view in chronology ]
  - John Fenderson (profile), 27 Dec 2012 @ 3:29pm
    
    Re: Re:
    No, the Constitution doesn't address the issue at all. You're thinking the Declaration of Independence.
    [ link to this | view in chronology ]
  - Anonymous Coward, 27 Dec 2012 @ 6:42pm
    
    Re: Re:
    Yes. Every four years for the President. Every six for Senate and every other year for the House. Maybe you shithouse radicals should run for office and show everyone how its done.
    [ link to this | view in chronology ]
    - The Real Michael, 28 Dec 2012 @ 6:15am
      
      Re: Re: Re:
      Actually, he's right: the public has the right to change government by force, if necessary, should they fail to do their jobs. Writing secret laws which undermine our rights constitutes an attack against the Constitution which they have a duty to uphold and protect. The government doesn't have a free pass to get away with doing anything it wants.
      [ link to this | view in chronology ]
      - John Fenderson (profile), 28 Dec 2012 @ 8:56am
        
        Re: Re: Re: Re:
        But the question is about Constitutionality. There is no Constitutionally guaranteed right to revolution. The Constitution's remedy for bad government is impeachment, elections, and criminal prosecution.
        [ link to this | view in chronology ]
        
        The Real Michael, 28 Dec 2012 @ 9:15am
        
        Re: Re: Re: Re: Re:
        That's true. However, the system has become so corrupted that such things will not occur, save for elections and even then the deck is rigged in their favor. There aren't many honest, hard-working, freedom-defending politicians, are there?
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 28 Dec 2012 @ 10:02am
        
        Re: Re: Re: Re: Re: Re:
        That's a different issue. You're arguing that the United States has failed as a nation and the only remedy is to dissolve it and start something else.
        
        Since the Constitution is what defines and authorizes the government, to argue that the nation should be destroyed is as unconstitutional as things get.
        [ link to this | view in chronology ]
Anonymous Coward, 27 Dec 2012 @ 3:58pm

"in saying that oversight works because abuse has been discovered."

Of course, if no abuse had been discovered, that would be evidence that oversight is not needed, right? They win either way.
[ link to this | view in chronology ]
Blain, 27 Dec 2012 @ 4:24pm

Wow
These senators swore a oath to protect the constitution. Why make them take that oath at all anymore when they just go against it and violate it? Or is that just for show now? I think all who vote for amendments and laws that attack our constitution should be released from our senate and prosecuted to the fullest extent of the law. They also lie and say most Americans are for FISA and that is a lie. No American is for there Rights being stripped and violated. And Americans are getting sick of this and are sick to death of hearing about terrorist cop out this, terrorist excuse cop out that. And it is going to get to the point were people are going to start to resist. But maybe they want people to resist so they can lie and call them terrorists and then declare a type of martial law which is what they really want (TOTAL CONTROL). But they don't admit that at least not yet anyway. I use to respect Feinstein But now I classify her as garbage just like McCain and the rest of the dirt bags. We need a new senate that cares for freedom and not fascism. Throughout history every dictatorship has started from laws like the NDAA and FISA. But I guess our grandfathers fought against nazi Germany just so one day there grandkids and great grandkids can also be secretly arrested just like the Jews and other non Aryans. Except this will be a politically correct equal opportunity secret arresting fascist dictatorship (wow how things improve hu?)
[ link to this | view in chronology ]
JohnnyRotten (profile), 27 Dec 2012 @ 5:32pm

You can bet your ass that this was heavy on their minds at the time, so the 2nd Amendment is there to make sure we are able to do it again if necessary.
...
Privately owned, people-killing, war-waging firearms are precisely why the 2nd Amendment exists.

What privately owned, people-killing, war-waging firearms do you know of that can reach up 30,000 feet? Because the Fed has lots of weapons platforms that can reach down that far. You're delusional if you think any weapon that can be bought legally is a strategic or even tactical threat to the US Military.
[ link to this | view in chronology ]
Mike Masnick (profile), 27 Dec 2012 @ 5:45pm

updates
In case you haven't seen the updates, three of the four amendments were considered tonight, and all were rejected.
[ link to this | view in chronology ]
Mesonoxian Eve (profile), 27 Dec 2012 @ 5:57pm

I wrote my senators via email explaining why I don't like FISA.

Looks like no one snooped it.

Either that, or the NSA snooped it and redirected it to an inbox in China.
[ link to this | view in chronology ]
Blain, 27 Dec 2012 @ 5:59pm

HA
Well I know of a lot of soldiers in the military who are not going to help the fascist if something that insane comes down. So I think it may not work if anything like that happens.
[ link to this | view in chronology ]
Anonymous Coward, 27 Dec 2012 @ 6:21pm

Apparently if you mention terrorism in Congress these days, it means you can completely ignore the Constitution.

"Didn't you hear me? I said TERRORISM! Who cares about the Constitution?! We have fear mongering to spread here."
[ link to this | view in chronology ]
That One Guy (profile), 27 Dec 2012 @ 6:47pm

I'm really hoping that Wyden's hand was forced, and he didn't voluntarily lift the hold in the laughable belief that he'd get anything other than exactly this from the senate. FISA is considered a PR move by politicians, nothing more, so the odds of any of them honestly debating about it, or even voting against it, are about the same as the odds of the Pope publicly coming out as a pastafarian.
[ link to this | view in chronology ]
Anonymous Coward, 27 Dec 2012 @ 6:47pm

If FISA is so slam-dunk unconstitutional, why hasn't it been overturned in Fedeal court yet?
[ link to this | view in chronology ]
Anonymous Coward, 27 Dec 2012 @ 8:03pm

Every senator who voted against the 4th Amendment should be shot for committing treason. They don't deserve to live, much less collect a $175,000/year salary!
[ link to this | view in chronology ]
- The Real Michael, 28 Dec 2012 @ 6:21am
  
  Re:
  I don't agree. Yes, they are (knowingly) violating their sworn oaths, but our first response shouldn't be to call for violence. We still have to lead by example.
  [ link to this | view in chronology ]
Anonymous Coward, 28 Dec 2012 @ 3:42am

the best thing that could happen would be for all those that were front runners in supporting this, like Feinstein and Chambliss, for example, to be on the receiving end of what they have just insisted on being renewed and then voted to renew it. i wonder how quick the likes of these would be to shout 'constitution' under those circumstances?
[ link to this | view in chronology ]
- Michael, 28 Dec 2012 @ 5:06am
  
  Re:
  They would probably end up simply voting how the NSA wants them to because someone would be holding incriminating photos and communications.
  
  Hmmm...chicken, or egg?
  [ link to this | view in chronology ]
Anonymous Coward, 28 Dec 2012 @ 9:00am

If FISA is so slam-dunk unconstitutional, why hasn't it been overturned in Fedeal court yet?
[ link to this | view in chronology ]
- Matthew Cline (profile), 28 Dec 2012 @ 1:33pm
  
  Re:
  For it to be ruled unconstitutional, the Supreme Court would have to rule on a case. For there to be a case, someone would have to file a lawsuit. And for the lawsuit to actually get anywhere, the person filing it would have to have standing. That is, someone the government snooped on without a warrant and under authorization of FISA would have to sue; the ACLU (for example) can't sue just on the basis that they think it's unconstitutional, since they have no standing. And before someone can sue for that, they have to know that the government snooped on them under FISA without a warrant. And how is anyone supposed to find that out?
  [ link to this | view in chronology ]
  - That One Guy (profile), 29 Dec 2012 @ 4:04pm
    
    Re: Re:
    Not only that, but for the case to go anywhere, the government would have to not decide to pull a 'state secrets/national security/sovereign immunity', any of which would shut the case down immediately or block the presentation of any evidence(which would essentially do the same thing).
    
    Given how hard those involved fight to keep any of their doings secret, you can bet they'd never let a case they might lose actually reach the point where a judge was handing out verdicts.
    [ link to this | view in chronology ]
Horn, 30 Dec 2012 @ 11:59am

?
What kind of idiot would actually suggest that defending the constitution is unconstitutional? wow. And no it is not up to congress or the supreme court to say what is and is not constitutional. That is what the constitution was written for.
dont be dumbxxses.
[ link to this | view in chronology ]