This Spade is a Spade: FISA Deal Is Bunk

So, House Majority LeaderSteny Hoyerannounced his precious FISAdeal today and I’m sure itwill not come as greatshock to this general audience that we at the ACLU think it’scrap. And by “crap” I mean unconstitutional.

Remember that horriblebill the Senate passed earlier thisyear? The onethat had virtually no Fourth Amendment protections? Ok, now imagineCongressman Hoyer and Senator Bond putting a really pretty, reallymeaningless bow around it to distract you from what’sactuallyinside. Then they added a giveaway to the phone companies. There.Now you have thecurrent FISA bill. Let me explain.

• Court review? Pssh. Please. This is how it would work: The government wants to tapsomeone’s phone. It claims “exigentcircumstances” and begins to do so. Then it goes to the FISACourt to be granted a warrant. “Hold up,” says thecourt. “This application is problematic and based onheresay.” Now the government starts the appeals process andthat goes on for heaven knows how long. When does the surveillance stopon the problematic target? Um, never. The government is allowed tobegin tapping without the courts and continue tapping when the courtsays no, provided it appeals. Nice, strong and meaningful judicialreview, huh?
• Immunity?Yes. Yes, it is. Here’s why: This immunity“compromise” sets the bar so low that anyone canclear it. Immunity hinges on whether a document from the president orgovernment exists asking the companies to comply? We know they havethem. You know who told us? The president. Asking the phone companiesto put on their Sunday best, waltz to the courthouse and present a notefrom the leader of the free world does not a full and fair airing ofthe facts make. It’s a farce and, frankly, it’soffensive to those of us who cherish our privacy rights. Congress willbe opening a Pandora’s box if this provision becomes law.What’s to prevent these companies from handing over ourinformation again? Absolutely nothing.

So, Americans’Fourth Amendmentrights and presumption of privacy are both teetering on the verge ofirrelevance and guess who wins? The telecoms and the re-electioncoffers of all the members who vote for this. For those of youaround at the end of last July, this is eerily familiar. Theadministration working behind the scenes with congressionalleadership, false deadlines, general cowardliness…ProtectAmerica Act anyone? Maybethat’s too harsh. Ohwait…no it’s not. This billhas immunity.

If you’re lookingfor a more in-depthand better written look, Godbless Glenn Greenwald. And if youhappen to be amember of Congress trolling the ACLU Blog of Rights, maybe you shouldread yesterday’s NewYork Timeseditorialfor instructions on how to behave during this vote.