Understanding The 2013 NDAA: Part 2
Congress is quietly abandoning the 5th amendment.
What everyone must understand is that American politics doesn't work the way you'd think it would. Few expected that President Obama would preside over the persecution of an NSA whistle-blower, or presume the guilt of all military-aged males killed by U.S. drone strikes. But it all happened.
Really thinking about all that may make it easier to believe what I'm about to tell you.
It may seem like imprisoning an American citizen without charges or trial transgresses against the United States Constitution and basic norms of Western justice dating back to the Magna Carta.
It may seem like reiterating the right to due process contained in the 5th Amendment would be uncontroversial.
It may seem like a United States senator would be widely ridiculed for suggesting that American citizens can be imprisoned indefinitely without chargers or trial, and that if numerous U.S. senators took that position, the press would treat the issue with at least as much urgency as "the fiscal cliff" or the possibility of a new assault weapons bill or likely nominees for Cabinet posts.
It may seem like the American citizens who vocally fret about the importance of adhering to the text of the Constitution would object as loudly as anyone to the prospect of indefinite detention.
But it isn't so.
casual news consumer cannot rely on those seemingly reasonable
heuristics to signal that very old norms are giving way, that
important protections are being undermined, perhaps decisively. We've
lost the courage of our convictions -- we're that scared of terrorism
(or of seeming soft on it).
junkies likely know that I'm alluding to a specific law that has
passed both the Senate and the House, and is presently in a
conference committee, where lawmakers reconcile the two versions.
Observers once worried that the law would permit the indefinite
detention of American citizens, or at least force them to rely on
uncertain court challenges if unjustly imprisoned. In response,
Senator Dianne Feinstein tried to allay these concerns with an
An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.You'd think the part about American citizens being protected from indefinite detention would be uncontroversial. It wasn't. But the amendment did manage to pass in the United States Senate.
Afterward everyone forgot about it pretty quickly. But not Charlie Savage. He's a journalist at The New York Times. If every journalist were more like him the United States government would be far less able to radically expand the president's unchecked authority without many people noticing.
Here is his scoop:
Lawmakers charged with merging the House and Senate versions of the National Defense Authorization Act decided on Tuesday to drop a provision that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects, according to Congressional staff members familiar with the negotiations.Says Adam Serwer, another journalist who treats these issues with the urgency that they deserve:
Of the four main negotiators on the defense bill, only one of the Democrats, Rep. Adam Smith (D-Wash.), opposes domestic indefinite detention of Americans. The Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-Mich.), believes detaining Americans without charge or trial is constitutional, and only voted for the Feinstein amendment because he and some of his Republican colleagues in the Senate convinced themselves through a convoluted legal rationale that Feinstein's proposal didn't actually ban the practice. Both of the main Republican negotiators, House Armed Services Committee Chairman Howard "Buck" McKeon (R-Calif) and Senator John McCain (R-Ariz) believe it's constitutional to lock up American citizens suspected of terrorism without ever proving they're guilty.There is a complication, as he notes: Civil liberties groups "aren't shedding any tears over the demise of the Feinstein-Lee amendment," because they objected to the fact that it protected only U.S. citizens and permanent residents, rather than all persons present in the United States. While I respect that principled stand, the more important thing is that this outcome puts us all at greater risk of having a core liberty violated, and that Senators McCain, Levin, and many other legislators suffer no consequences for failing to protect and defend the United States Constitution.
As Serwer puts it, "The demise of the Feinstein-Lee proposal doesn't necessarily mean that Americans suspected of terrorism in the US can be locked up forever without a trial. But it ensures that the next time a president tries to lock up an American citizen without trial -- as President George W. Bush previously tried -- it will be left up to the courts to decide whether or not it's legal."
This week's senate scandal: Scorn for the 4th Amendment.
I haven't passed the bar, but I know a little bit about the 4th
Amendment. Have you read it lately? "The right of the people to be
secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated," it states in plain English, "and no Warrants shall issue, but
upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."
That's all of it.
landline in your house? The government needs a warrant to tap it. The
letters in your mailbox? The government needs a warrant to read 'em.
It's like the Framers said: probable cause is required.
text or an email, even one sent from your bed, is treated differently --
it's afforded much less protection from government snoops, even though
we're increasingly going all digital in our communication.
Rand Paul raised that question Thursday on the Senate floor. "We became
lazy and haphazard in our vigilance," he told his colleagues during a
debate about government surveillance. "We allowed Congress and the
courts to diminish our Fourth Amendment protection, particularly when
our papers were held by third parties. I think most Americans would be
shocked to know that the Fourth Amendment does not protect your records
if they're banking, Internet or Visa records. A warrant is required to
read your snail mail and to tap your phone, but no warrant is required
to look at your email, text or your Internet searches. They can be read
without a warrant. Why is a phone call more deserving of privacy
protection than an email?"
The subject came up because the
legislators were debating whether or not to extend a law that gives the
federal government surveillance powers that some say are necessary to
fight terrorism, especially by intercepting foreign communication that
originates outside the United States. "This sparsely-attended holiday
session is likely to be the only full
floor debate on sweeping surveillance legislation that has been in
force for four years already (during which we know it has already been used unconstitutionally),
and is all but certain to be renewed for another five," Julian Sanchez, Cato's expert on the subject, wrote before the debate began. "That's
especially disturbing given that, when the House debated the law back in
September, its strongest supporters revealed themselves to be profoundly confused about what the law does, and just how much warrantless spying on the communications of American citizens it permits."
So why specifically is the law objectionable? Just ignore the acronyms and you'll understand just fine:
The FAA authorizes large scale surveillance of Americans' communications. Supporters of the act suggested again and again that this can't be true, because the law requires NSA surveillance programs to have a foreign 'target.' But this is based on a misunderstanding of what 'target' means in FISA. As former Deputy Attorney General David Kris explains at length in his book on the law, the 'target' of a surveillance program under FAA is typically just the foreign group--such as Al Qaeda or Wikileaks--that the government is seeking information about. The FISA court approves general procedures for surveillance, but it's NSA agents who decide which particular phone lines and e-mail accounts will be wiretapped, and there is no explicit requirement that these particular phones and e-mail addresses be foreign--only the program's overall target.Making the case for continuing to empower the Obama Administration and its spying, the Heritage Foundation's Jessica Zuckerman mentions neither the past abuses associated with the legislation nor the ways the private communication of innocent Americans are made vulnerable by it.
And of course, there is something historically very strange about imagining that surveillance can only violate the rights of named targets: The Founders abhorred 'general warrants,' which they passed the Fourth Amendment to abolish, precisely because these warrants authorized searches of people and homes who were not specifically named targets, exactly as the FAA does.
Sanchez, a policy analyst at The Cato Institute, reported on several efforts to amend the legislation to better protect innocent Americans from government spying on their communications, including what he characterized as several "very mild, common sense tweaks," which I'll detail shortly, and a proposal by Senator Paul that he described as "genuinely radical."
Sen. Paul's proposal, as described on his Web site, "extends Fourth Amendment guarantees to electronic communications and requires specific warrants" if police want to search or seize them. What does it say about how far afield we are from the spirit of the 4th Amendment that the mere attempt to reaffirm it for the electronic age would require radical change?
Senator Leahy tried to amend the law so that it would be extended for three years rather than five, but he was voted down -- put another way, we don't know who'll be president when this law comes up again for renewal. But what really gets me is the failure of Senator Merkley's amendment.
In order to understand it, you'll need a bit of information I'm hesitant to share, because if you're like most people, it'll sound too egregious to be true, and you might think that I am making it up.
The thing is that there's a legal interpretation that shapes how surveillance is conducted under current law. And it's a secret interpretation -- a memo written up by government lawyers explaining how the law works, but that Americans subject to the law aren't allowed to see. Senator Ron Wyden, who has seen it, says it's problematic -- that the 'lawyer take' isn't what a lot of people might expect, given the text of the law. But he isn't allowed to say anything more specific.
Openly debating the interpretation is verboten!
If you'll go into the weeds with me very briefly, here's the Electronic Frontier Foundation explaining further:
In 2010 and 2011, Obama administration officials promised to work to declassify secret FISA court opinions that contained "important rulings of law." These opinions would shed light on whether and how Americans' communications have been illegally spied on. Since then, the administration has refused to declassify a single opinion, even though the administration admitted in July that the FISA court ruled that collection done under the FAA had violated the Fourth Amendment rights of an unknown number of Americans on at least one occasion.
Starting with the precept that "secret law is inconsistent with democratic governance," Sen. Jeff Merkley's amendment would force the government to release any FISA court opinions that contain significant interpretations of the FISA Amendments Act so the American public can know how it may or may not be used against them.And even Senator Merkley's amendment failed!
A majority of the Senate bears responsibility for this scandalous abandonment of the Fourth Amendment. And TechDirt rightly singles out Democratic Senator Dianne Feinstein of California:
Senators Ron Wyden and Jeff Merkley did their best to raise significant issues, but Senator Dianne Feinstein kept shutting them down with bogus or misleading arguments, almost always punctuated with scary claims about how we had "only four days!" to renew the FISA Amendment Acts or "important" tools for law enforcement would "expire." It turns out that's not actually true. While the law would expire, the
Furthermore, Feinstein continued to mislead (bordering on outright lies) about the FISA Amendments Act. While some of the proposed amendments focused on finally forcing the secret interpretation of the FISA Amendments Act to be disclosed, Feinstein held up the text of the bill and insisted there "is no secret law" and that "the text is public." That assumes that "the law" and "the text of the legislation" are one and the same. They are not. As Julian Sanchez notes, imagine that Supreme Court rulings were all classified, how would you interpret the Constitution? You could make guesses, based on what the law said, but without the court's rulings, you would not know what that meant in practice. That's exactly the situation we have with the FISA Amendments Act... and it's made even worse by the fact that those who have seen the still-secret interpretation -- such as Senator Wyden -- have made it clear that its quite different than what most people think the law says.