I recommend reading Greenwald's long article on this. I think he explains better than anyone else the absurdity of the situation and the shamelessness of the senators who voted for FISA and against the amendments to it:
The downmods are undeserved. Knowing a bit about this subject, I find Greenwald's coverage to be some of the worst. People need to remember that he's not a journalist and his goal is not to inform. He's a pundit making an argument, and his arguments are often contrary to the facts.
Could you list some of the facts Greenwald has wrong in this article? He is indeed good for confirming my biases, and he litters his posts with so many quotes and links that it seems trustworthy, but I don't want to believe it if it's false.
Since Tom's already fisked the linked article, I'm going to stick to the broad strokes.
Greenwald's ongoing claim is that the 2008 FISA bill legalizes "warrant-less wiretapping"; however, warrants have never been required for targeting intelligence collection on non US persons. In fact, the main impact of the 2008 FISA bill was to explicitly specify collection and oversight standards for targeting non US persons communicating over US systems. Previously, this had been an open legal question, as I explained in a bit more detail here:
http://news.ycombinator.com/item?id=4979641
So, my big problem with Greenwald is that in all his discussion of FISA he's never provided a simple, honest explanation of how and why it changed in 2008. He uses scare words and sweeping hyperbole, but doesn't address the actual facts of the matter. I'm all for an informed debate on how (or even if) FISA should be implemented. However, you can't have that debate if you refuse to be even cognizant of the current facts.
While I agree that Greenwald mostly danced around the issue, I think there was some content to his exclamations. While I'm not terribly familiar with Jennifer Granick, I think she does a much better job explaining the FISA vs FAA debate [1]; her writing seems more objective to me. Presumably Greenwald leaves it to the reader to inform themselves? A strange idea, I must admit.
See, that's the problem. You believe this even though it's the exact opposite of the law as written. And by that I mean, no rational person with a basic grasp of the English language or US law could possibly interpret the 2008 FISA law to mean what you've claimed. However, you believe an obvious falsehood because you don't know the law itself, and are simply following what you've been told by misinformed or intentionally dishonest sources.
Thank you for exactly summing up my frustration with Glen Greenwald.
Yeah, you're a liar. Perhaps you missed the entire debate that went by the heading of "telecom amnesty", but that's on you.
Just out of curiousity: can you explain what the telecom companies were granted amnesty for? Parking tickets? Jaywalking? Or spying on Americans in America?
You mean, despite it saying the opposite. That they used slippery lawyer's words in drafting the 2008 amendments so that the bill meant the opposite of what it said.
The inaccuracies begin in the very first graf. Greenwald notes Obama's pledge to filibuster any bill that indemnified telcos for participating in unlawful surveillance, then moves the goalposts to suggest Obama abandoned that objective by casting a yea vote that indemnified telcos for (a) lawful surveillance (b) conducted under the color of an entirely new statute in (c) a bill that mostly consisted of new limitations on FISA surveillance powers.
In other words, Greenwald invented an entirely new promise for Obama ("I will filibuster any bill that indemnifies telcos for any reason in concert with surveillance of any sort") and then cited him for a "blatant, unblinking violation of his own clear promise".
The lede of the cited article is incorrect, misleading, and pointlessly and unproductively political.
Next graf: continuation of same broken argument. Still no details about what the 2008 FISA Amendments Act actually said.
Next graf: invocation of Dick Cheney (the Democrats controlled the US Senate when the FISA Amendments Act passed, and Jay Rockefeller is no political ally of Cheney's; evidence for Cheney's actual input in the act: zero). Still no details about what the 2008 FISA Amendments Act actually said.
Next graf: multiple misrepresentations about the purpose of the FISA court and the conduct the Bush administration conducted that provoked outrage. Still no details about the 2008 FISA Amendments Act, which, contra the actual text of the article so far, specifically forbids the government from intentionally targeting American persons or persons residing in America.
Next graf: dishonestly conflates Wyden's proposals for increased accountability with Paul's showboating attempt to rewrite all existing rules regarding electronic communications to exempt any such communications stored in Google; in other words, foreign powers would be immune from spying so long as they used GMail.
Next graf: begins with "consider how modest these amendments are". Continues with suggestions that all the amendments he's mentioned are reasonable and well-thought-out. Note again here that Wyden himself didn't offer an amendment that required warrants for foreign intelligence or individualized suspicion for programmatic intercepts.
Next graf: still not having directly explained any of the contents of the 2008 FISA Amendments bill, Greenwald predictably fails to mention that the NSA is already forbidden by that bill from surveilling US targets when he mentions Wyden's bill requiring warrants for surveillance of US targets. Here Greenwald again carefully lawyers the words "US Soil" to implicate the idea that the NSA is spying on Americans. Merkley's amendment, "modest" by clear implication, suggests that a court whose purpose is to ensure that spies are spying on foreign targets and not Americans should be compelled to release the details on American spying to the public.
Next graf: no problems, straightforwardly confirms that the Administration opposes amendments that would have the net effect of immediately halting in-process foreign surveillance operations.
Next graf: Dianne Feinstein is now "conservative-Democratic" despite 100% ratings from reproductive rights groups, environmental groups, the Human Rights Campaign, arts groups, and, according to Votesmart, an 87% score from the ACLU. Why? because Feinstein supports something Greenwald opposes, falling into his no-true-Scotsman trap.
Next graf: Obama relied on Republicans (the "root of all evil") for an act that passed overwhelmingly.
Next graf: the 2008 FISA Amendments act, which Greenwald still hasn't discussed in detail, is now a "massive increase" in the government's surveillance powers, when in fact by statute it limits those powers; the "massive increase" comes from statutory authority to conduct programmatic surveillance of foreign nationals without individual findings for each person involved, a detail you can count on Greenwald not to share with you.
Next two grafs are quotes, but check your wallet after reading them.
Next graf: the 2008 FISA bill is flawed (sure), and Obama demands its renewal "without a single change". No: Obama failed to support any of the amendments offered for the bill, which is obviously not the same thing as a refusal to entertain any changes to the act at all.
Next graf: Rand Paul's "modest" amendment to the PATRIOT act, which would have exempted gun dealers (and nobody else) from PATRIOT-motivated subpoenas. Greenwald doesn't take the time to tell you what this amendment was because he would sound stupid explaining that in late December 2012. Also: Harry Reid is Dick Cheney.
Next two grafs are quotes.
Next graf: "if you try to debate the PATRIOT act", for instance by proposing a last-minute amendment exempting gun dealers from subpoenas in terrorism investigations, Reid suggests you support the terrorists. Of course, in neither of the preceding two quoted grafs does Reid say anything like this.
Next graf: plutocratic Dianne Feinstein, instrument of the national security state (with an 87% ACLU scorecard) is similarly demonizing people with concerns about the 2008 FISA Amendments act.
Here I give up. By all means. Cite Greenwald as if he's an objective source.
> moves the goalposts to suggest Obama abandoned that objective by casting a yea vote that indemnified telcos for (a) lawful surveillance (b) conducted under the color of an entirely new statute in (c) a bill that mostly consisted of new limitations on FISA surveillance powers.
On (a), how or why can one be indemnified for lawful activity?
The bill to which Greenwald refers does in fact grant retroactive immunity from lawsuits seeking to show that the telco's participation was unlawful.[1] Such lawsuits would occur because other parties to the activity are protected by other mechanisms.
On (b), not sure what you mean by 'under the color of'. Hopefully not a reference to retroactive legalisation.
(c) doesn't seem at all relevant to the specific point here.
I don't know how to respond to this comment, but would like to point out that these CRS memos (I've read a bunch of them today) are so. great. We really need to bump up the budget for the CRS.
Thanks for clarifying. In the context of not addressing the question over Greenwald's credibility it looked sarcastic to me. You see, it's very confusing if you express appreciation for something that seems to contradict your point but then don't address the contradiction.
I appreciate your graciously thorough response. Judging from this and other comments, are we all agreed then that the "programmatic" surveillance is quite concerning? Am I correct in understanding that even though it's not supposed to "intentionally" target US citizens, they can't even provide an estimate of how many citizens have been included, implying that perhaps many citizens in fact have been?
Sure, programmatic surveillance is concerning, and oversight is good, and more of it is needed. But people in this debate tend to forget that we are debating the oversight of our spies. How much transparency do we expect?
Because that's what espionage against your own citizens, under the pretext of defense against external threats, for the purpose of defense from external threats and bespoke citizens, is.
I was just going to respond with the boom headshot kitty, but I figured this was HN and not reddit so I'll just say thanks for the detailed education on a topic I knew nothing about.
I'm a bit confused by your first point: the claim Obama's spokesman made back in 2007 reads more like your 'entirely new promise' than what you suggest in your first paragraph.
I have a hard time believing that transparency and documentation requirements pose a real threat to our national security and, while I believe that there probably is a good-faith concern that new documentation requirements could further slow down a system that is already hugely overtaxed, I generally say "fuck 'em, figure it out". Oversight good. Transparency good.
On the other hand, the message board response to FISA appears to be a blanket call for an end to spying period. I'd love to live in a world where nobody needed espionage or intelligence services, but I'm not interested in litigating whether we actually live in that world now. As long as FISA isn't perverted into a tool for bringing drug charges against Americans, I'm not very concerned about the underlying mechanism.
I think Rand Paul is just showboating.
I wish Leahy's amendment requiring warrants for domestic electronic mail older than 180 days had succeeded.
Given the scope and focus of FISA legislation that's extremely unlikely. It would be far easier to use some other legislative vehicle than try to shoehorn something into FISA that is already explicitly outside its scope.
I do not believe the US Government is a giant conspiracy to evade the constitution for the purpose of apprehending drug users. I believe that when the government seeks a warrant to surveil foreign targets for counterterrorism, their interests are actually in disrupting terrorism.
That doesn't mean I think we have effective counterterrorism (for instance, there's widespread evidence that CIA uses, or at least for a long time used, torture to attempt to obtain information in counterterrorism cases; torture is morally repellent and, equally importantly, demonstrably counterproductive), or that I think terrorism is legitimately the key federal goal that DHS and CIA claim that it is.
But I don't subscribe to the slippery slope argument that suggests that the government will inevitably use every power we give it for any purpose to, I don't know, enforce the Comics Code Authority.
Aside from what tptacek has to say, there's generally a strong distinction between intelligence and law enforcement that's more or less enforced by the exclusionary rule. Ironically, there might actually be benefits to outright warrantless wiretapping as opposed to use of the FISA court to obtain warrants, namely that any such wiretaps could only be used for intelligence purposes, never for law enforcement.
"On Thursday, May 26th, 2011, award-winning Salon.com columnist and New York Times-bestselling author Glenn Greenwald gave a fiery address to attendees at the ACLU of Massachusetts annual Bill of Rights Dinner. He described how the Obama administration has aggressively defended--and at times expanded--the Bush White House's attacks on civil liberties, expansion of government surveillance and secrecy, and executive power assertions in the ''war on terror.'' He argues that this continuity between the two major political parties spells long-term trouble for the Bill of Rights in the United States, and suggests that the work of the ACLU is crucial to reestablishing the rule of law."
In fact Mr. Greenwald turns up on their site again and again:
http://www.aclu.org/search/%22glenn%20greenwald%22
Knowing that Greenwald trained and practised as a lawyer you should realise that the ACLU is one of the few organisations he points to as standing up for the average citizen against the possible (read actual) tyrannies of government.
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I know you're a smart guy: may I suggest that there is some cognitive dissonance at play between your statements, "If you want to have your biases confirmed, Greenwald is a very effective mechanism for doing that." and "I generally find ACLU's takes to be honest and well-studied." given that these two actors practically seem to sing from the same hymn sheet.
http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-fei...