Yesterday, the Senate voted on three proposed amendments to the legislation that will renew the infamous FISA Amendments Act for 5 more years. The original legislation makes no attempt to reform the FISA Amendments Act, but the three amendments that came up for a vote yesterday attempted to remedy that in small ways, placing small checks on the extraordinary, unconstitutional spying powers the FISA Amendments Act has unleashed.
The first of these amendments, the Leahy Amendment, sought to reduce the time that the FISA Amendments Act will be extended – from five years to three years. The Leahy Amendment was rejected on a 38 to 52 vote.
The second amendment, offered by Senator Jeff Merkley, attempted to end the secrecy around the legal justifications for the FISA Amendments Act. Under the FISA Amendments Act, spying on the Internet, wiretapping of wireless communications, opening of private email, and so on, takes place in absolute secret. Americans who have had their private conversations and online activities spied upon under the FISA Amendments Act are never told about it.
This secrecy creates an atmosphere that diminishes trust in the reality of our basic constitutional rights, such as freedom of speech, freedom of assembly, and freedom from unreasonable search and seizure. Americans know that their government has constructed a system that is capable of gathering vast amounts of information about their private lives, integrating its own online wiretaps with seizure of information that has been gathered by companies like Facebook and Google. Combined with that knowledge, Americans have complete ignorance of when, or even whether, this spying system has turned its gaze to examine their particular lives.
Thus, the Internet, which was once an arena of revitalized democracy, has been converted into a Panopticon. The psychology of the Panopticon is part of what allows Big Brother to maintain control in George Orwell’s nightmare of the future, 1984.
Defenders of the FISA Amendments Act have said that secrecy of online surveillance is essential, because evil terrorists might evade the spying if they knew it was taking place. However, in the many years that the FISA Amendments Act has been in effect, there is not a single case that they can identify in which, if Americans were told that their online activities were being watched by the government, a terrorist attack might have taken place.
The secrecy of the FISA Amendments Act goes even further, however. More than just the spying against Americans itself, the legal rulings that are used to justify the spying are also being kept secret from the American people. The FISA Amendments Act has created a growing area of American law that the American citizenry cannot possibly understand.
FISA Amendments Act powers are run through a FISA court, a group of unelected judges with identities that remain secret from the American people. The American people aren’t allowed to know when or where the FISA court meets, or what legal matters the FISA court is considering. The rulings of the court, which direct the application of the FISA Amendments Act spying, are also secret.
The second amendment to the FISA Amendments Act extension proposed yesterday would have, if passed, removed a small aspect of this secrecy.
The amendment, offered by Senator Jeff Merkley, would NOT have required the federal government to tell Americans when the electronic spying system of the FISA Amendments Act has searched through their private online documents.
The Merkley amendment would NOT have required the public election of FISA judges, or resulted in their identification.
The Merkley amendment would NOT have ended the secrecy about where or when the FISA court meets.
The Merkley amendment would NOT have ended the secrecy about the purposes of the FISA Amendments Act spying being pursued.
The Merkley amendment would have merely required the declassification of portions of FISA court rulings that describe the legal theory that justifies the use of FISA Amendments Act powers. Only a vague, general sense of the Executive Branch’s legal interpretation of FISA Amendemnts Act powers, and the FISA court’s response to that interpretation, would have been revealed.
The Senate decided, however, that even this tiny amount of government transparency would be intolerable. The Senate voted to defeat the Merkley amendment, 37 to 54.
The minority of senators who voted to support Merkley’s amendment are named below:
Daniel Akaka (D-HI)
Max Baucus (D-MT)
Mark Begich (D-AK)
Michael Bennet (D-CO)
Jeff Bingaman (D-NM)
Richard Blumenthal (D-CT)
Maria Cantwell (D-WA)
Benjamin Cardin (D-MD)
Thomas Carper (D-DE)
Kent Conrad (D-ND)
Chris Coons (D-DE)
Richard Durbin (D-IL)
Al Franken (D-MN)
Kirsten Gillibrand (D-NY)
Dean Heller (R-NV)
Amy Klobuchar (D-MN)
Patrick Leahy (D-VT)
Mike Lee (R-UT)
Carl Levin (D-MI)
Joe Manchin (D-WV)
Bob Menendez (D-NJ)
Jeff Merkley (D-OR)
Patty Murray (D-WA)
Ben Nelson (D-NE)
Rand Paul (R-KY)
Jack Reed (D-RI)
Harry Reid (D-NV)
Brian Schatz (D-HI)
Charles Schumer (D-NY)
Jeanne Shaheen (D-NH)
Debbie Stabenow (D-MI)
Jon Tester (D-MT)
Mark Udall (D-CO)
Tom Udall (D-NM)
James Webb (D-VA)
Ron Wyden (D-OR)
Most Americans, addled with visions of Sandy Hook and Fiscal Cliffs, and drowsy from feasting on figgy pudding, will remain completely ignorant that this vote ever took place. If they had taken the time to go beyond the end-of-year news summaries on cable television, might this vote have turned out differently?
Might pigs some day learn to fly?