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US Congress approves extension of secret surveillance under FISA

Published time: September 12, 2012 16:30
Edited time: September 13, 2012 16:39
U.S. Capitol.(AFP Photo / Win McNamee)

U.S. Capitol.(AFP Photo / Win McNamee)

The House of Representatives voted Wednesday to extend the government’s power to warrantlessly wiretap Americans for another five years by reauthorizing the 2008 amendments to the Foreign Intelligence Surveillance Act.

Lawmakers in the House agreed from Washington, DC on Wednesday afternoon to reauthorize the Foreign Intelligence Surveillance Act’s Amendments Act of 2008 (FAA), a polarizing legislation that has been challenged by privacy advocates and civil liberties organizations alike around the country. The extension was approved by a vote of 301 to 118.

The Foreign Intelligence Surveillance Act was first signed into law in 1978 by President Jimmy Carter, but amendments added two decades later under the George W Bush administration provide for the government to conduct widespread and blanketing snooping of emails and phone calls of Americans. The FISA Amendments added in 2008, specifically section 702, specify that the government can eavesdrop on emails and phone calls sent from US citizens to persons reasonably suspected to be located abroad without ever requiring intelligence officials to receive a court order.

If the US Senate echoes the House’s extension of the act, the FAA will carry through for another five years until 2017, ensuring the federal intelligence community that they will be able to conduct surveillance on the correspondence of the country’s own citizens well into the future. If no action is taken, the FAA is slated to expire at the end of 2012.

Earlier this year, a plea from two US senators to see how many times the FAA has been used was refused by the National Security Administration. Last month, San Francisco’s Electronic Frontier Foundation filed a lawsuit against the US Justice Department for failing to adhere to Freedom of Information Act requests for documents pertaining to the program.

“The FISA Amendments Act (FAA) of 2008 gave the NSA expansive power to spy on Americans' international email and telephone calls,” the EFF explained in an official statement made after the suit was filed. “However, last month, in a letter to Senator Ron Wyden, a government official publicly disclosed that the NSA's surveillance had gone even further than what the law permits, with the Foreign Intelligence Surveillance Court (FISC) issuing at least one ruling calling the NSA's actions unconstitutional.”

Sen. Wyden, a Democratic lawmaker from Oregon who has also sit on the Senate intelligence committee for several years, originally asked for Senate to place a hold on the vote this past June. This week, Sen. Wyden tells Reuters, "My hold is on and it will stay on," although that plea does not apply to the House, however, where lawmakers appeared eager on Wednesday to power through the vote.

So determined were some lawmakers to proceed, in fact, that the rules of the debates preceding Wednesday’s vote called for no more than one hour of discussion before ballots were cast. Several congressmen, including lawmakers that planned to vote yes on the FAA extension regardless, proposed a two year extension as a compromise, but no new amendments were allowed to be tacked on before Wednesday’s vote.

Despite opposition on and off the Hill, the FAA has received praise from some of Washington’s most elite members of the government, including Attorney General Eric Holder and long-standing lawmaker Rep. Lamar Smith (R-TX), the sponsor of the FAA renewal who also infamously urged Congress to approve the since-defeated Stop Online Piracy Act, or SOPA, a broad and dangerous Internet legislation that threatened to reshape the Web as we know it.

In his address at Northwestern University School of Law this past March, Mr. Holder said section 702 of the FAA “ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security,” but emphasized the fact that only persons thought to be outside the US — not Americans — can be targeted. When Sens. Wyden and Udall asked to know how often that snooping involved Americans at all, however, they were told by the NSA’s Inspector General that a “review of the sort suggested would itself violate the privacy of US persons.”

On his part, Sen. Wyden has written, “that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act . . . Then it is possible that this number could be quite large.”

“Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American,” the lawmaker wrote in an official press release earlier this year.

Rep. Smith, the sponsor of both this bill and SOPA, has said, “We have a duty to ensure the intelligence community can gather the intelligence they need to protect our country.”

On Thursday, Rep. Smith claimed, “Foreign nations continue to spy on America to plot cyber-attacks and attempt to steal sensitive information from our military and private sector industries,” and that Congress has “a solemn responsibility to ensure that the intelligence community can gather the information” necessary to hinder these attempts.

Rep. Dan Lungren (R-California) added on Wednesday from the Hill that reauthorizing the FAA is “critical to the protection of the American people,” claiming that the United States, “as a nation had not done enough to connect the dots to warn us sufficiently to protect” against another terrorist attack on par with the ones that devastated America on September 11, 2001.

Rep. Trey Gowdy, a Republican congressman from South Carolina, also used the attack on the Twin Towers to justify the necessity of extending the FAA.

“If we could come together to remember 9/11, surely we can come together to prevent another one,”

said Rep. Gowdy.

Opponents of the act, however, say that the attempts to do as such come at a cost too great for civil liberties.

“We’ve been told that we can’t even tell how many people are being subjected to this process located in the United States, and that we don’t know and they can’t tell us,” Rep. John Conyers (D-Michigan ) pleaded earlier this year in opposition to the act. “I think we can get a little bit closer. There can be some reasonableness. It’s this kind of vagueness that creates in those of us in the Congress, suspicions that are negative rather than suspicions that are positive.”

“Why can't we know how many people are affected by FISA amendment act in the US?” Rep Conyers asked. “This kind of vagueness creates suspicions.”

Former Democratic presidential hopeful Rep. Dennis Kucinich (D-Ohio) said on his own part that those suspicions are even more validated since the Justice Department has declined to adhere to a Freedom of Information Act request for information on the FAA, explaining on Wednesday, “Everyone becomes suspect when big brother is listening.”

Rep Hank Johnson (D-GA) also threw his weight behind efforts to reject the act on Wednesday, saying it the FISA amendments allow for “illegal surveillance of an untold number of American citizens” with absolutely no oversight.

“Not even the NSA knows the extent to which FISA amendment acts have potentially been approved,” Rep Earl Blumenhauser (D-Oregon) added from the House floor before the vote.

The American Civil Liberties Union reports that, every day, the NSA intercepts and stores around 1.7 billion emails, phone calls, text and other electronic communications thanks to laws like FISA. To put it into perspective, they add, “that’s equivalent to 138 million books, every 24 hours.”

“After four years, you’d hope that some basic information or parameters of such a massive spying program would be divulged to the public, or at least your rank-and-file member of Congress, but they haven’t,” says Michelle Richardson, a counsel at the ACLU’s Washington Legislative Office. “Only a small handful of members have either personally attended classified briefings or have staff with high enough clearances to attend for them.Sen. Ron Wyden — who has been on the Senate Intelligence Committee for years—has even been stonewalled by the Obama administration for a year and a half in his attempts to learn basic information about the program, such as the number of Americans who have had their communications intercepted under the FAA.”

“Can you believe that 435 members of Congress who have sworn to uphold the Constitution are about to vote on a sweeping intelligence gathering law without this basic information?” she asks.

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