Home / General / The “War On Terror” Remains A War on the Fourth Amendment

The “War On Terror” Remains A War on the Fourth Amendment



The Foreign Intelligence Surveillance Act is meant to allow the government to spy on suspected foreign agents abroad, but it is written in such a manner that it allows the government to snoop on conversations involving American citizens, as long as at least one end of the conversation involves a suspected agent of a foreign group overseas. But very few lawmakers know how the law works, or even have the staff with the necessary expertise or security clearances to figure out how it works. So when respected legislators like Feinstein take to the Senate floor to say that any changes would lead to more flaming buildings and American corpses, senators take it seriously. What this means, however, is that Congress just voted to approve a largely secret law it doesn’t really understand. In the Senate, they actually voted not to know what the law does by rejecting an amendment that would have made the government state how many Americans have been spied on without a warrant.

“Americans have no way of figuring out how their laws are being interpreted,” Senator Ron Wyden (D-Ore.) said. “We don’t expect the public to, in effect, just accept secret law.”

I also endorse most of what Greenwald says, although as usual with the quibble that when he says that the bipartisan consensus to give wide warrantless wiretapping discretion to the executive branch is an “Obama legacy,” he’s imagining an effectual civil libertarian opposition in Congress that has never actually existed.

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  • James E Powell

    Question is, how do elected officials stand up for privacy rights when the electorate supports obliterating them? Like torture, or the death penalty, or the drug war, doing the right thing gets no votes and, it is believed, loses many votes.

    • You know Ben Franklin foresaw these dangerous situations when he said “…if you can keep it.”

      The whole freedom and accountability is teh hard. Much easier to have your Daddy tell you what’s good for you and just keep your mouth shut and your brain in neutral.

      It’s not really a political problem, it’s human nature. People don’t like to have their heads hurt from too much complicated thinking.

    • Hogan

      It’s been done before, like when the original FISA passed. Marginal improvements anyway. It would help a lot if the point person on that issue for the supposedly left-leaning party in the Senate weren’t recycling the laziest and stupidest cliches of every red scare ever.

      Dellums, thou should’st be living in this hour.

    • david mizner

      In fact, there’s strong support for privacy rights.


      As for torture, President Obama won the presidency with an anti-torture position.

      True, you don’t win many votes running on pro-civil liberties positions, but the cost of doing is often exaggerated.

      • LosGatosCA

        In theory, you’re right. If asked people prefer privacy over any privacy violation of any sort, especially if the perceived cost to them is free.

        In practice, people sign up for Facebook, Instagram, and email services that search your content for any purpose the providers put in their mostly unread terms and conditions. Even when known privacy issues surface the majority put a value on their privacy that is so low most can’t be bothered to switch or turn the service off

        Of course, there is a whole public kabuki dance whenever the providers go too far too fast, but the result is just a slower pace in smaller increments to the same place later. Boiling the frog seems to be very effective in this case.

        People only seem to care strongly about intrusive privacy violations – unwanted phone calls, spam emails, and junk mail. Collectively, society just doesn’t seem motivated to protect their other privacy in any meaningful way.

    • Semanticleo

      Of course they pay strict attention to polling when it’s convenient.

      Dismissive of those polls which aren’t; such as the rogue states known as Washington and Colorado

  • tonycpsu

    Thoughts on this? It’s Naomi Wolf, so grain of salt, etc. but having big banks partnering with the domestic security/surveillance apparatus does not sound like a good thing to me.

    • More crying Wolf.

      Did you notice that Wolf doesn’t actually include any language from the documents in her piece, but only her own characterization of what they show?

      In general, if an alleged “bombshell” document contains something noteworthy, the people pushing it are eager to share its language with one and all.

      If you click through (and through, and through) to the documents themselves, there’s no there there (at least in terms of her well-worn conspiracy theory). Over at the GOS, the usual suspects pushing this conspiracy theory are trying to get around this inconvenient fact by saying, “The documents are heavily redacted.” So, what, you’re just going to fill in whatever makes them say what you want them to say?

      Unless you’ve already decided that there was a massive conspiracy to “coordinate” the suppression of OWS; and that any contact between federal agencies, local law enforcement, and the targets of the protests is a smoking gun; and you go out of your way to read those assumptions into the documents, there’s nothing in them to support Klein’s ongoing scam.

      She’s either a grifter, or she can’t stand that she was Wrong On The Internet.

      • sparks

        Now why on earth would a protest movement be paranoid about the FBI?

        • Lots of reasons.

          But this isn’t about sharing her feelings. She made false statements about what was in the memos.

          Her fee-fees about the FBI don’t require us to shut off our brains and accept falsehoods.

          • sparks

            She’s far from convincing, but who knows if the FBI redactions are all for valid security reasons?
            Oh, and thanks for rising to the bait, I guessed you would.

            • John

              Obviously, nobody knows if the redactions are all for valid security reasons. Certainly Naomi Wolf doesn’t.

            • Oh, and thanks for rising to the bait, I guessed you would.

              I admit it: stupid shit like what you wrote is a magnet to me. If I read something as stupid as your comment, I’m like an OCD sufferer who’s seen a hair on the sink. I have to go wipe the stupid away, or it’s going to bug me until I do.

    • The most interesting part of all of this is how Wolf’s reaction mirrors the reaction of the Republicans to the “infamous” DHS memo about right-wing domestic terrorism. The DHS warned that right-wing terrorists might try to recruit American veterans, which the Republicans turned into “DHS is calling American veterans terrorists!”

      In some of these memos, the FBI notes that violent anarchists might try to exploit the OWS protests to commit acts of violence and provoke riots.* Wolf turns this into “The FBI is calling OWS protesters violent anarchists!”

      *This actually happened, btw. The Black Bloc showed up, smashed some storefronts, and tried to provoke the police into attacking the crowds. In some cities, the actual OWS protesters took to pointing out Black Bloc infiltrators to the police.

  • c u n d gulag

    “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

    Sorry, Mr. Franklin, but we’ve traded essential liberty, for security and safety.

    I guess we couldn’t keep this republic, after all.

    You see, there were some guys with boxcutters who got on airplanes and…

    What’s a boxcutter, what’s an airplane, Mr. Franklin?
    Never mind…

    • Bill Cross

      did we trade liberty for security and safety or the appearance of security and safety?

      • LosGatosCA

        Both, any, all of the above. It’s piece of mind they are after. Whether its blissful ignorance from security theater that lets them feel better working like a placebo, misdirected invasions of uninvolved countries, misguided wars on (scopusc) drugs, or endless war in ungovernable countries, it all works on most people a good deal of the time. With plenty of charlatans willing to build all the toys needed. Of course, providing actual security also works, too.

  • Joe

    One problem here is the USSC never will directly determine the licit reach of such legislation unless it takes a case & allows standing. There is a case taken this term important in this respect.

  • Joe

    off topic: “Promised Land” examines fracking. Will any blogger here check it out?

  • Semanticleo
    • somethingblue

      Um, if I understand this, they want the White House to impeach Feinstein for coming to take everybody’s guns away?

      I look forward to the White House response.

      Next up: Sign the petition to have the Nebraska legislature recall Scalia for his role in Iran-Contra.

      • Semanticleo

        At this point, I don’t care if she’s impeached for having a bad-hair day.

      • Joe

        One doesn’t impeach senators anyhow. This was the understanding since the 1790s.

  • david mizner

    This is what GG said:

    Here we find yet again a defining attribute of the Obama legacy: the transformation of what was until recently a symbol of right-wing radicalism – warrantless eavesdropping – into meekly accepted bipartisan consensus

    He’s not necessarily “imagining an effectual civil libertarian opposition in Congress”; he’s merely pointing out the obvious — that this is yet another Bush stance that generated angry opposition from Democrats (a fillibuster) and progressives but now, with Obama backing, opposition on the left barely exists. This has happened on several issues, and yes, it’s part of Obama’s legacy.

    Here’s Jack Balkin:

    …Obama has played the same role with respect to the National Surveillance State that Eisenhower played with respect to the New Deal and the administrative state, and Nixon played with respect to the Great Society and the welfare state. Each President established a bi-partisan consensus and gave bi-partisan legitimation to certain features of national state building.

    After the Obama presidency, opponents of a vigorous national surveillance state will be outliers in American politics; they will have no home in either major political party. Their views will be, to use one of my favorite theoretical terms, “off the wall.”

    Nor should this be surprising. The causes that led to the rise of the National Surveillance State and the bureaucratic interests that led to its continuation and expansion, have continued unabated.

    Yet, one might hope that the Obama version of the National Surveillance State might turn out to be more benign and friendly to civil liberties than the Bush/Cheney version. To a certain extent this is true, but not by as much as you might think. On several fronts, Obama has continued Bush era policies of preventive detention, surveillance, and protection of state secrets. And in other respects, he has gone further.


    • Semanticleo

      It all started with this…..http://en.wikipedia.org/wiki/National_Security_Act_of_1947

      Harry gave us HELL, as well.

    • Scott Lemieux

      You quoted the key passage yourself:

      a symbol of right-wing radicalism

      This implies that not only was there effectual opposition, but that holding fast to a libertarian fourth amendment in a national security context was the mainstream position. Alas, this isn’t actually true.

      • david mizner

        No less right-wing and radical (Bushian) than the invasion of Iraq. Just because support for it was the “mainstream” barely, if at all, mitigates its right-wingness and radicalism.

        It doesn’t imply that there was “effectual” opposition, only that there was significant opposition.

        • david mizner

          Also consider the progressive blogsophere. In 2008 FISA was a huge issue for it. Now: next to nothing.

          • Semanticleo

            This, to the 10th power.

            It’s all Fiscal Cliff, all the time.

    • mds

      that this is yet another Bush stance that generated angry opposition from Democrats (a fillibuster) and progressives but now, with Obama backing, opposition on the left barely exists.

      In December 2007, Chris Dodd’s attempted filibuster of telecom immunity failed 76-10. In February 2008, modified FISA passed the Senate 68-29. In June 2008, cloture on the motion to proceed to consideration of the FISA Amendments Act of 2008 was invoked 80-15. In July, cloture on the actual vote was invoked 72-26, and the measure passed 69-28. The legislation also passed a Democratic-controlled House while George W. Bush was president.

      Hit the fast-forward. The FISA Amendments Act Reauthorization Act of 2012 passed the Senate 73-23. Senator Wyden’s attempt to amend it to so much as report on the privacy implications failed 43-52. The bill had already passed a Republican-controlled House.

      Now, it’s true that there weren’t any filibuster attempts on consideration or voting this last time. We can attribute that to either (1) Obama’s perfidy, or (2) the ability of opposing senators to remember anything prior to 2009, and to do simple arithmetic. There wasn’t some huge swing away from the pro-civil-liberties bloc since Obama became President; there never was a substantial enough civil-liberties bloc to begin with.

      It’s bad enough that we’ve had to be exposed to gibbering horseshit about how the Senate Dem caucus voted against closing Gitmo because they agreed with Bernie Sanders’ civil liberty concerns; now we have comparable pre- and post-2009 FISA vote tallies mysteriously indicating a complete Democratic Party flip-flop on the issue.

      Look, one could make the perfectly valid and distressing complaint that too many Democratic politicians don’t care very much about civil liberties in this matter, and haven’t for quite some time. That at least wouldn’t be stupidly counterfactual.

      • Mic drop.

      • Paula

        Whatever. Its not like GG’s acolytes have the most accurate memory of who supported what and when, like the time period when Greenwald himself supported gong into Iraq as late as 2005.

  • wait: diane feinstein is a “respected” senator?

    • Scott Lemieux

      Also, she’s always been terrible. It’s not like she just become a hack war hawk after Obama got elected.

      • howard

        I agree; the idea that feinstein is respected by anyone leaves me mystified!

        • xxy

          She’s very popular here in CA for some reason.

          • Look at her competition last time around. It’s a fixed fight.

    • Snarki, child of Loki

      You just have to understand the way senators use sarcasm:

      “My HIGHLY ESTEEMED colleague…” = Stupid corrupt fuckstick.

      Yes, she is VERY RESPECTED indeed.

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