The NYT's Predictable Revelation: New FISA Law Enabled Massive Abuses

In The New York Times last night, James Risen and Eric
Lichtblau -- the reporters who won the Pulitzer Prize for informing the
nation in 2005 that the NSA was illegally spying on Americans on the
orders of George Bush, a revelation that produced no consequences other
than the 2008 Democratic Congress' legalizing most of those activities
and retroactively protecting the wrongdoers -- passed on leaked revelations of brand new NSA domestic spying abuses, ones enabled by the 2008 FISA law.

In The New York Times last night, James Risen and Eric
Lichtblau -- the reporters who won the Pulitzer Prize for informing the
nation in 2005 that the NSA was illegally spying on Americans on the
orders of George Bush, a revelation that produced no consequences other
than the 2008 Democratic Congress' legalizing most of those activities
and retroactively protecting the wrongdoers -- passed on leaked revelations of brand new NSA domestic spying abuses, ones enabled by the 2008 FISA law. The article reports that the spying abuses are "significant and systemic";
involve improper interception of "significant amounts" of the emails
and telephone calls of Americans, including purely domestic
communications; and that, under Bush (prior to the new FISA law),
the NSA tried to eavesdrop with no warrants on a member of Congress traveling to the Middle East. The sources for the article report that "the problems had grown out of changes enacted by Congress last July in the law that regulates the government's wiretapping powers."

In reacting to these leaks, I share Digby's sentiments entirely:
"It was so inevitable that I can't even find the energy to get worked
up about it." I also don't want this news to distract from what ought
to be the singular big story of the day -- namely, whether Obama will
release the 3 key Bush DOJ memos that legalized specific torture
techniques (as Andrew Sullivan correctly says,
a failure of full disclosure "will betray all [] who supported him to
restore the rule of law"). Nonetheless, there are some critical facts
that need to be highlighted in order to prevent distortion of the
meaning of the Risen/Lichtblau article.

These widespread
eavesdropping abuses enabled by the 2008 FISA bill -- a bill passed
with the support of Barack Obama along with the entire top Democratic leadership in the House, including Nancy Pelosi and Steny Hoyer, and substantial numbers of Democratic Senators -- aren't a bug in that bill, but rather, were one of the central features of it. Everyone knew
that the FISA bill which Congressional Democrats passed -- and which
George Bush and Dick Cheney celebrated -- would enable these
surveillance abuses. That was the purpose of the
law: to gut the safeguards in place since the 1978 passage of FISA,
destroy the crux of the oversight regime over executive surveillance of
Americans, and enable and empower unchecked government spying
activities. This was not an unintended and unforeseeable consequence
of that bill. To the contrary, it was crystal clear that by gutting
FISA's safeguards, the Democratic Congress was making these abuses inevitable.

Opponents of this bill were warning that exactly these abuses would occur if the bill was passed. Here's how I summarized some of the opposition to the FISA bill on June 21, 2008 -- just a couple of days before its passage:

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home"
because "the government can still sweep up and keep the international
communications of innocent Americans in the U.S. with no connection to
suspected terrorists, with very few safeguards to protect against abuse
of this power." Rep. Rush Holt -- who was actually denied time to speak
by bill-supporter Silvestre Reyes only to be given time by
bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.

eavesdropping safeguards was the central purpose of the FISA bill. It
was why Dick Cheney and Michael McConnell were demanding its passage.
Yale Law Professor Jack Balkin at the time wrote:

Most Americans don't realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush.
President Obama will like having Congress authorize these new powers.
He'll like it just fine. People aren't paying as much attention to this
part of the bill. But they should, because it will define the law of
surveillance going forward. It is where your civil liberties will be defined for the next decade.

key Democrats [and, needless to say, the GOP minority, which (other
than Ron Paul) unanimously supported the bill] ran around spouting pure
propaganda, telling the public that they were supporting this new
FISA bill because it would safeguard and even enhance civil libertiesprotections.

Here is what
was said about the bill by the Democrats' House Majority Leader -- who,
along with Dick Cheney and Jay Rockefeller, was the key force behind
its passage: "In an interview with Politico on Monday, [Steny] Hoyer
called the FISA legislation a 'significant victory' for the Democratic Party
- one that neutralized an issue Republicans might have been able to use
against Democrats in November while still, in his view, protecting the civil liberties of American citizens."

Hoyer's claims were echoed immediately by Barack Obama when he announced that he, too, would support the FISA "revisions." Obama said:

the grave threats that we face, our national security agencies must
have the capability to gather intelligence and track down terrorists
before they strike, while respecting the rule of law and the privacy and civil liberties of the American people . . .

this compromise legislation, an important tool in the fight against
terrorism will continue, but the President's illegal program of
warrantless surveillance will be over. It 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.

And here is the excuse which Time Magazine offered for the Democrats as part of an article mindlessly repeating what was told to them by House Speaker Nancy Pelosi:

motivated Pelosi and the Democrats to incur the wrath of their liberal
base and allow one of the Administration's most controversial
anti-terror policies to be extended? A mix of politics, pragmatism and
some significant concessions. . . .

Stonewalling the Administration and letting the surveillance powers expire could
have cost the Democrats swing seats they won in 2006 as well as new
ones they have a chance to steal from Republicans this November
"For any Republican-leaning district this would have been a huge
issue," says a top Pelosi aide, who estimates that as many as 10
competitive races could have been affected by it.

The Washington Post
Editorial Board -- one of our nation's leading watchdogs over abuses of
government power (just ask them and they'll tell you that) -- issued a ringing endorsement of the new bill:

leaders of both parties should be commended for drafting legislation
that brings the country's surveillance laws into the 21st century while protecting civil liberties
and preserving important national security prerogatives. The bill is
scheduled to be voted on today in the House, and it deserves to pass.

Worst of all, Obama surrogates -- such as Cass Sunstein, Greg Craig and Nancy Soderberg -- were dispatched to tell people with a straight face that the FISA-gutting bill strengthened civil liberties protections and improved eavesdropping oversight. Needless
to say, hordes of trusting Obama supporters immediately seized on that
blatantly false assertion ("the bill Obama supports strengthens oversight!")and began reciting it in defense of their candidate. Now, a mere nine months later, TheNew York Times
reports that the bill enabled and caused massive abuses of the NSA's
eavesdropping powers. Imagine that: if you gut even the minimal
oversight provisions designed to check presidential eavesdropping
abuses, abuses will not (as Democrats and Obama surrogates claimed)
decrease, but will actually increase substantially. Who could have

Several other points to note about these new revelations:

(1) The
abuses which Risen and Lichtblau report last night are far from
comprehensive. These are just isolated slivers that they are able to
describe as a result of individuals leaking portions of what they
know. Indeed, while the article emphasizes that the abuses are
"significant and systemic" and "went beyond the broad legal limits,"
there are exceedingly few specifics in their story detailing exactly
what the abuses were. In other words, most of the information about
the NSA's abuses remain concealed. We have learned only a small
fraction of what took place.

(2) Note the wall
of extreme secrecy behind which our Government operates. According to
the article, various officials learned of the NSA abuses and then
secretly told some members of Congress about them, and those
individuals have been secretly discussing what should be done. The
idea that the Government or Congress should inform the public about the
massive surveillance abuses doesn't seem to have occurred to anyone
other than the whistleblowers who leaked what they knew to The New York Times.

(3) Since being elected President, Barack Obama has done everything in his power to block judicial proceedings
that would examine allegations that the NSA has been abusing its
eavesdropping powers and illegally intercepting the telephone and email
communications of Americans. Put another way, Obama -- using radical claims of presidential powers of secrecy
-- has been preventing disclosure of the very abuses disclosed by this
article and preventing legal scrutiny, all by claiming that even George
Bush's illegal NSA spying programs are "state secrets" that courts must
not adjudicate. That's what the "state secrets" controversy is
about -- Obama demanding that courts be barred from examining or ruling
on any of these abuses and imposing consequences, based on his claim
that these activities are so secret that they must never see the light
of day.

(4) In addition to destroying most of
the FISA oversight framework, the 2008 bill also sought to terminate
all lawsuits that were brought against telecoms for eavesdropping
abuses. Those lawsuits would have examined and led to judicial rulings
on past NSA abuses, but the Democratic Congress and the Bush
White House instead retroactively immunized the lawbreaking telecoms
and thus ensured that there would be no consequences for any of it.

It's true that the Times
article claims that these abuses were uncovered as part of the DOJ's
preparation of the semi-annual report which the 2008 FISA law requires
be submitted in secret to the FISA court. And, once they knew that the
Times had learned of and was preparing to write about these
abuses, Obama officials claimed in response that the abuses are being
corrected and that eavesdropping activities are now in compliance with
the safeguards of the law. The problem, however, is that "the law" --
thanks to the Democratic Congress -- now has exceedingly few safeguards
in it. It allows massive domestic spying without meaningful oversight,
and renders these eavesdropping abuses inevitable. That was true in
June, 2008 when the FISA-gutting law was passed, and it is just as true

* * * * *

I'll be on Democracy Now this
morning at roughly 8:00 a.m. EST to discuss this matter and today's
deadline for disclosure of the OLC torture memos. Live video and local
listings are here. A transcript and video of the segment should be posted shortly.

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