Smith & Walden: Warrantless spying without probable cause on Americans is A-OK.
We're a little late on this story, but it's worth noting for BlueOregon readers. Over the weekend, a small minority of Democrats joined with Republicans to expand the Bush Administration's powers to spy on Americans without a warrant and without probable cause.
And while some Democrats across the country may be lacking in spine, every single one of Oregon's Democrats stood up for our constitutional rights. Congresswoman Darlene Hooley, and Congressmen Peter DeFazio, Earl Blumenauer, and David Wu all cast No votes. So did Senator Ron Wyden, a member of the Intelligence Committee.
But Senator Gordon Smith and Congressman Greg Walden voted Yes.
What does this new FISA authority do? From Geoffrey Stone, professor of law at University of Chicago, blogging at the Huffington Post:
What does the amendment authorize? Until last weekend, FISA prohibited the government from intercepting any international telephone call or email communication involving persons in the United States without a warrant from the FISA court based upon probable cause. The amendment authorizes the government to wiretap or intercept any international communication, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is "directed at a person reasonably believed to be located outside of the United States."There is no requirement that the government must obtain a search warrant from the FISA court, and no requirement that the government must have probable cause to believe that the person "reasonably believed to be outside of the United States" is a terrorist or even an associate of terrorists. The new legislation empowers the Attorney to authorize such surveillance as long as the purpose is to gather "foreign intelligence" and the surveillance is "directed at a person reasonably believed to be outside the United States."
If it's directed at people outside the USA, why should Americans care?
When the government intercepts telephone calls and email exchanges between an American in Chicago and a foreign national in Berlin it intrudes upon the privacy of both parties to the communication. Such surveillance invades the privacy of the American in Chicago just as much when the exchange is with someone in Berlin as when it is with someone in Miami. That the surveillance is "directed at a person reasonably believed to be outside the United States" is no consolation to the American in Chicago.Until last weekend, the law did not define the privacy interest of the American in Chicago in terms of whether he was speaking or emailing with a person in Miami or Berlin. In either case, because the surveillance invaded the privacy of an American on American soil, the government needed probable cause and a warrant.
Shame on Gordon Smith. Shame on Greg Walden.
Discuss.
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Aug. 07, 2007
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Aug 7, '07
[sarcasm]
I expect now the Oregonian will stop pretending Mr. Smith is a moderate.
[/sarcasm]
Aug 7, '07
That vote, in a word, is an obscenity against our democracy.
Aug 7, '07
The problem is not only that Smith and Walden have this attitude and indifference towards the Constitution. Let's not forget the other part - perhaps the more important part - that is, the people that vote for them. Including so-called Democrats for Smith.
Aug 7, '07
The Democrats who support these bills are incredibly stupid--the first enemy Bush spies on is none other than Democrats! And once Hillary gets the tools, she'll spy on Smith and Walden, if they're still there. Only then the corporate media will likely take note of the Fourth Amendement...
9:23 a.m.
Aug 7, '07
Ayup. Walden and Smith supporting a fear driven agenda to further slice and dice the US Constitution is pretty much a Dog bites Man story........They are not now, nor have they ever been Conservatives by any sane definition of the word. Bob Barr, Larry Craig, Richard Viguerie, and many other actual conservatives have had their voices drowned out by the NeoCon fearmongers for so long that they've become irrelevant.
But then again, a bunch of cowardly Democrats caving in to an emascualted administration with an approval rating below 30% is also a Dog bites Man story.......
I've been defending Pelosi as a "realist", but I'm about done with that.
At least our own Ron Wyden did us proud. He was up on NPR going right to the heart of the matter of the removal of judicial revue from the mix, and our gang in the House voted the right way.
Way to go Senator Wyden......and shame on every one of the sixteen Dem senators and the myriad Dem reps that allowed themselves to be cowed.
I mean, Holy Shit, if they can't stand up to the now toothless War Wimps in the Whitehouse, how can we expect them to enact and enforce sane security for the nation if we elect more of 'em and maybe get the presidency.
No wonder their approval ratings are in the toilet.
Aug 7, '07
Since the Supreme Court is now a wholly owned subsidiary of the Republican Party, we cannot count on the court system to stand up to this clear violation of the Constitution and Bill of Rights. The conflict is now completely political. Those Dems who supported Gordon Smith last time around need to make amends. (i.e. Avel Gordly and Elizabeth Furse) More important than the senate is that we elect a president who respects the constitution. You can bet the Repugs will have a change of heart on this law if it's a Dem president who is doing the spying. The N.R.A. can just as easily become the terrorist organization being spied upon, as a Quaker peace group.
Aug 7, '07
When fear of terrorism overcomes our embrace of liberty and separation of powers, we decline as a democracy. This is a major victory for those terrorists who seek to undermine democracy. They have won. Those voting to authorize unchecked government data-mining of all communication originating overseas are co-conspirators in my book. The modest inconvenience inherent in requiring secret review and (after-the-fact) Judicial approval of wire taps, honors liberty and tempers intrusion, if only slightly. Of course such an inconvenience becomes an impediment when the volume of communications intercepted overwhelms the checks established to prevent abuse. Big brother just got a heluva lot bigger. Gordo, Greg and all those politicians who capitulated to fear must be held accountable for their role in the downfall of democracy because they failed to heed the fundamental lesson of demonstrating courage in the face of fear. They forgot, or perhaps never embraced the wisdom history has taught in dealing with fear as a democracy. Thus, I share for their benefit: "So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance." FDR It seems, in order to advance our democracy we must jettison those leaders who gladly sacrifice our liberty in the face of fear.
11:02 a.m.
Aug 7, '07
Ok, I have a question. It is a frustrated, but serious one. I'd like some real suggestions. Everyone always says contact your reps and make your wishes known. I've been active in that, and in other things. What do you do when your reps ARE fighting for it and making decisions in the best interest of the country? I mean ALL of the people who represent me are knee deep in this fight (I don't count the Republican reps here who tow the party line). I mean, my rep in the House is one of the freakin CO_SPONSORS of the impeachment resolutions.
Where do I go from here, when the people I'm supposed to get to listen to me ARE listening to me? Thanks.
Aug 7, '07
Glenn Greenwald has a good piece , as usual, over on Salon today, showing how the Dems' cave-in on this is bad politics as well as bad policy.
Aug 7, '07
Bill R posted: "You can bet the Repugs will have a change of heart on this law if it's a Dem president who is doing the spying."
My fear goes beyond the Repubs having a change of heart when the Democrat in the White House is still authorizing the spying.....I'm worried that the Dems in congress will go along quite willingly.
If the Democratic President maintains the Bush Administration's spying program then do you suppose that maybe they have been shown something that has scared their pants off and now feel it's justified? Sigh....hope not.
1:09 p.m.
Aug 7, '07
Be sure to write to all our Dems in Congress who voted against this horror, and just as important, write to Slick Gordy and tell him (in polite professional toes) just how pissed you are about his vote, and how your mission is to send the pea-picker packing. Slick Gordy has really gone too far, again, and must be exposed. Tell a friend.
Aug 7, '07
i hear the anger directed toward ol gordy and it is well earned but lets not forget walden.
isnt it time to recruit a viable candidate and work like hell to help him/her beat walden? i don't want this reactionary to get a free ride on this vote.
1:58 p.m.
Aug 7, '07
I'm disappointed with the Blue Dogs. But then again, what do you expect? They're holding onto highly "culturally conservative" southern seats, and have to represent people who like our economic stances (especially the big farm subsidies), but are naturally theocratic, uneducated, and pro-war.
(Side note- a lot of Democratic activists confuse Blue Dogs with the DLC, but they're actually the opposite of each other: the libertarian leaning Democratic Leadership Council likes mainstream Democratic social positions, but disagrees with us on trade. DLCers vote our party line about 70% of the time; Blue Dogs about 50%)
The solution, of course, is obvious: the more Democratic the vote, the more our representatives will feel safe in taking a stronger position against the Republicans. Flip Walden, and 15 more Republican seats, and this would have gone down, even with the Blue Dogs backing it.
Aug 7, '07
i hear the anger directed toward ol gordy and it is well earned but lets not forget walden.
isnt it time to recruit a viable candidate and work like hell to help him/her beat walden? i don't want this reactionary to get a free ride on this vote.
Unless Walden proves to be gay or a child molester, the majority of voters in his district will still vote him in. They are like most voters. They don't know or care about his indifference to the Constitution, that he voted for the war on Iraq, that he was one of Tom DeLay's buddies and that he worked with Smith to steer water to the Klamath Basin so that the fish stocks were destroyed and the fishermen were screwed for years to come. And more.
I'm not equating gays with child molesters, but that is how the "rednecks" in Walden's district would see it.
3:17 p.m.
Aug 7, '07
Please point out the districts or states where warrantless wiretapping is the popular, predominant position, Steve. And how do you explain someone like Dianne Feinstein?
This was a fear vote, pure and simple. They were afraid of being attacked. Why their memories are so short as to not remember 2006--when Rove tried to make the election about Democrats soft on terrorist surveillance and got thrashed in response--I have no idea. If they really think they were voting to protect themselves in their districts, they need to get out TO their districts and reacquaint themselves with the voters.
No more Democratic votes of fear, please! And no more excuse-making for them! If you are worth your salt as a leader in this country, the (phantom) threat of being attacked for your position on FISA should be WELL worth it, in order to protect the Constitution they swore to defend.
11:44 a.m.
Aug 8, '07
I'm glad to know that everytime I call my wife or her family in Korea, I'm probably being tape recorded. I mean she must be a terrorist right?
Aug 8, '07
Maybe Walden and Smith and the others in Congress who voted for more spying on Americans would prefer intimate love letters going overseas to be read by them first.
In that case, I need to read of few romance novels because I'm sort of a nerd. But really now, that is a very serious issue, and those politicians act as though our privacy rights don't matter. Oregon voters should replace Smith and Walden by voting for their opponents.
Some of the same conservatives that were adamant about keeping government out of our bedrooms, off our property and away from our personal privacy, are getting right up on us now.
Oregonians must not take rights away from Oregonians! Well, that's what I think. Walden and Smith need to come back to Oregon (as in retirement from politics) so they can remember what it means to be an Oregonian.
Aug 8, '07
This was a fear vote, pure and simple.
Have you considered that it may have been a policy vote, that Feinstein voted in favor because she actually agrees with the policy?
I disagree with Feinstein and others on this, but I also think we should spend less time excoriating our politicians for their perceived motives, and start actually talking about the policies behind their votes. Why does Feinstein think this is a good idea? Probably because she's weighing the reduction in civil liberties (small) against the possibility of stopping a terrorist attack (also small) and decided the civil liberties were worth giving up.
I disagree with her because I think the chance of catching a terrorist through a random phone call is pretty much nil. But if that chance grew into a material number, I probably would agree that warrantless monitoring of international phone calls is worth the cost. [Before I get totally flamed on this, let's put it into context: You cannot fly commercially in the United States without subjecting your person and your belongings to a warrantless search by the government -- a serious violation of our civil liberties. Would any of you advocate eliminating searches at airports because the civil liberty cost is too high?]
The more important question to me is this: Where are the Democratic and progressive foreign policy and defense think tanks that can factually rebut Feinstein and other wavering Democrats on these issues? Our Dems in Congress are lost in the wilderness on most of this stuff.
9:50 p.m.
Aug 8, '07
You cannot fly commercially in the United States without subjecting your person and your belongings to a warrantless search by the government -- a serious violation of our civil liberties. Would any of you advocate eliminating searches at airports because the civil liberty cost is too high?
Wrong analogy. Flying in an airplane is a voluntary act. I can't carry a gun into the White House either - but then, walking into the White House is a voluntary act, too.
I do appreciate your argument that folks ought to look at the policy votes - and not at perceived hidden motives.
Aug 8, '07
Wrong analogy. Flying in an airplane is a voluntary act.
Um, isn't making a phone call a voluntary act? I fail to see how using the airlines is any different than using the phones. There are alternatives to both (driving, snail mail) that would allow you to avoid warrantless searches, but those alternatives are totally inadequate in any real life scenario.
Why do we accept total invasion of our civil liberties when it comes to flying, but we reject it when it comes to making a phone call? Answer: Because we believe that airport security prevents hijackers from taking over our plane, but we don't believe that random screening of phone calls will prevent the next terrorist attack. And if that's the case, we're making a practical/policy argument rather than a philosophical one.
2:54 a.m.
Aug 9, '07
Yeah, they're both voluntary acts... but telephones are such an integral part of daily life that it's not really reasonable to argue that people could/would manage without.
Air travel is another matter. Much more a luxury, esp. in a world where there are people who have never left their part of town, much less their region.
Aug 9, '07
Have you considered that it may have been a policy vote, that Feinstein voted in favor because she actually agrees with the policy?
Feinstein also said Colin Powell made a compelling speech on February 5, 2003 at the UN security council when he was selling Bush's war. Feinstein has a tendency to believe people if they have power and prestige without checking to see if they know what they are talking about.
Aug 9, '07
Yeah, they're both voluntary acts... but telephones are such an integral part of daily life that it's not really reasonable to argue that people could/would manage without.
But we're only talking about international calls here, right? I've lived abroad and traveled extensively, but I still fly far more often than I make international calls. I think that's probably true for most Americans.
The argument you're making -- that complete and total warrantless searches of every air passenger are somehow less invasive to our civil liberties than occasional warrantless eavesdropping on international phone calls -- seems like a serious stretch in order to avoid acknowledging an inconsistency in your views. Why not just join me in saying that warrantless eavesdropping is wrong not because of some absolute right to be free from search and seizure, which doesn't exist, but instead becuase it just won't work?
Aug 10, '07
This was too much like "I voted for it before I voted against it." So they voted against it, after they made sure it would pass. More concisely, it is called hypocrisy. That they had to do something - the wrong thing - on an important issue before they went home has gotten to be a habit with the gang in Congress. I'm sure this will win praise among some voters.
George Bush is happy now. Karl Rove is happy now. And you guys here at BlueOregon are happy too.
Nice going guys.
It will be interesting to see how the next election cycle goes now that the Democrats have slammed the door on the left side of the party. There certainly won't be the enthusiasm we saw in the last election. If people do turn out to be disappointed with the job Democrats have done nationally, it will of course have effect on elections locally as well.
<h2>Domestic spying used to be an impeachable offense in this country. Changing that is certainly not what Democrats were elected to do, but that is what they did. I know, they voted against it, but that was after they made sure that it would pass anyway.</h2>