It’s been almost four years since the FISA Amendments Act of 2008 put President Bush’s warrantless wiretap program on legal footing by authorizing broad, programmatic surveillance of Americans’ international communications. The only thing the public really knows about it so far is that it was almost immediately misused, resulting in “significant and systemic” overcollection of Americans’ purely domestic communications. Subsequent reporting revealed that the improperly “overcollected” communications could number in the millions, and included former president Clinton’s private e-mails. So naturally, the Senate is charging ahead toward the renewal of these sweeping powers without hearings or debate.
It’s not just the public that’s in the dark about the use of the FAA mind you. Sen. Ron Wyden has been clamoring for more information—and, to the extent possible, public deliberation—for months now. Yet the Director of National Intelligence has told Wyden that “it is not possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA,” though he did refer to classified reports indicating the “number of collection targets that were later determined to be located in the United States.” Meanwhile, work continues on a multibillion dollar NSA decryption and data storage facility capable of storing all that information indefinitely. The only real check on this is activity is congressional oversight, which as intelligence scholar Amy Zegart demonstrates in her important recent book Eyes on Spies: Congress and the United States Intelligence Community, is largely chimerical.
Meanwhile, there are serious questions about whether the FAA is even constitutional. But the government doesn’t want any court to even consider those questions: It has petitioned the Supreme Court to shoot down a challenge to the law before it even begins, in a case to be heard in the coming term.
This is a truly incredible state of affairs. We have a vast apparatus for intercepting—and retaining indefinitely—American communications on a mass scale. We are being asked to take it as an article of faith that this is absolutely necessary to the security of the United States, even though similar claims about the original warrantless wiretap program could not be substantiated by later internal audits. The government doesn’t want to have to even defend the constitutionality of this program in front of a judge. And Congress doesn’t seem interested in so much as discussing the question, or making the public privy to so much as the raw numbers involved, before giving the NSA four more years of carte blanche. But hey, look over there, someone tangentially related to a presidential campaign said something dumb on cable television! Clearly there’s no time to discuss trivia like this “vast government database of intercepted communications.”