Last June, the U.S. Senate was poised to pass the FISA Amendments Act (full text here) — a bill that made permanent the warrantless surveillance system enacted by 2007’s Protect America Act, adding on legal immunity for any past spying on Americans without a warrant. In the course of considering the FISA Amendments Act, a group of Senators proposed an amendment that would provide some limited civil liberties protections in line with the 4th Amendment to the Constitution. You may have read the 4th Amendment once; it prohibits government search and seizure of a person’s body, property, or private communications without a warrant based on probable cause. Despite the Constitution, over the objections of a small minority of civil libertarian Senators, the amendment was rejected and — with Barack Obama’s help — the FISA Amendments Act was passed into law.
I mention last year’s Senate debate today because of what Senator Orrin Hatch of Utah said then to denigrate anybody perceiving a danger in the FISA Amendments Act. Senator Hatch took to the floor of the Senate on June 25, 2008 and declared:
I shouldn’t be surprised by the inclusion of these onerous oversight provisions, which no previous Congress felt the need to add. How many times have we heard the claim that the Protect America Act would permit the government to spy on innocent American families, overseas, on their vacations, or innocent American soldiers overseas serving their country, or innocent students, American students, who are simply studying abroad? Painting this type of picture only feeds the delusions of those who wear tin foil hats around their house and think that 9/11 was an inside job.
How crazy, this notion that the government might spy on innocent American families, or soldiers, or students overseas? Not at all crazy, this notion. Disclosures since the passage of the FISA Amendments Act reveal that the National Security Agency snooped on the overseas conversations of American journalists and American non-profit relief workers without a warrant. The NSA even used its power to listen in on the phone sex between American soldiers at war and their spouses at home. No, not so nutsy at all, Senator Hatch. Just this week, it has been revealed that the NSA tried to wiretap and listen in on the phone conversations of a member of the United States Congress… again, without any warrant. Which member of Congress was it? Oh, that’s classified, of course. Also revealed this week is the NSA’s practice of using its warrantless wiretapping technology to spy on large volumes of phone calls and e-mails made by Americans to other Americans right here in the USA… not under the Bush administration, but under the administration of Barack Obama. Is that Change You Can Believe In?
Do you still have to wear a tin foil hat to think that the government would use its powers to spy on Americans without a warrant? Is the claim still some kind of paranoid delusion? Despite all the evidence to the contrary, Senator Orrin Hatch seems to think it still is… or at least wants the American people to think so. Earlier this month, Senator Hatch took to the floor of the Senate again to issue this declaration regarding government surveillance powers:
The uninformed and the paranoid portray these tools as an example of unchecked government
monitoring reminiscent of a scene from George Orwell’s book “1984.”
The clue phone just keeps on ringing, but Orrin Hatch won’t pick it up.
Say, why was Orrin Hatch making another speech about government surveillance powers just this month? Let’s take a look. It turns out Hatch’s speech was made in conjunction with an amendment he wrote (Senate Amendment 962) to a Senate Concurrent Resolution (S. Con. Res 13) setting the budget for 2010. Here’s the text of Senate Amendment 962:
AMENDMENT NO. 962
(Purpose: To ensure the continued safety of Americans against terrorist attack by Al Qaeda and other terrorist organizations by providing a point of order against any legislation that would weaken or eliminate critical terror-fighting tools)
At the appropriate place, insert the following:
SEC. lll. POINT OF ORDER.
(a) IN GENERAL.—After a concurrent resolution on the budget is agreed to, it shall not be in order in the Senate to consider any bill, resolution, amendment between Houses, motion, or conference report that—
(1) weakens any authorized anti-terrorism tool or investigative method provided by the USA Patriot Act of 2001 (PL 107-56), the Intelligence Reform and Terrorism Prevention Act of 2004 (PL 108-458), the USA Patriot Improvement and Reauthorization Act of 2005 (PL 109-177), or the FISA Amendments Act of
2008 (PL 110-261); or
(2) eliminates any authorized anti-terrorism tool or investigative method provided by any of the statutes referred to in paragraph (1).
(b) SUPERMAJORITY WAIVER AND APPEALS.—
(1) WAIVER.—Subsection (a) may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.
(2) APPEALS.—Appeals in the Senate from the decisions of the Chair relating to any provision of subsection (a) shall be limited to 1 hour, to be equally divided between, and controlled by, the appellant and the manager of the bill or joint resolution. An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required to sustain an appeal of the ruling of the Chair on a point of order raised under subsection (a).
To translate from Legalese to English, the amendment says that after the budget has been passed by the Senate, no bill to reform or overturn the Patriot Act or the FISA Amendments Act can even be considered by the Senate unless 60 Senators vote otherwise. Supporters of a bill to reform or overturn the Patriot Act or FISA Amendments Act will have no more than half an hour, the length of an episode of the Simpsons, to make their case.
Orrin Hatch’s amendment, in other words, makes it extremely difficult to bring up, much less pass, any bill to overturn warrantless surveillance programs during the 111th Congress — even though multiple instances of overzealous, invasive and prurient snooping on Americans have been revealed.
The night Hatch introduced it, Senate Amendment 962 passed by the unanimous consent of the Senate. Later that night, the Senate passed the budget, bringing Hatch’s amendment into effect.
All 99 members of the Senate were present for a roll-call vote just moments before, which makes it pretty clear that all 99 members of the Senate were there to let this amendment pass through.
Why did your Senators support a bill that makes it difficult to protect the civil liberties of Americans against government intrusion? Ask your Senators.
Why haven’t you heard about the Hatch Amendment and its effects before now? You haven’t heard the news about it because there has been no news about it: not one news organization has provided coverage of the amendment, its significance, or its passage. Reporters were too busy writing their 14,000 stories on Britney Spears. George Will was occupied drafting his column declaring blue jeans to be a social menace.