Lindsey Graham: I’d Support Censoring The Mail If Necessary

Well, at least we know that there’s no question of where South Carolina Senator Lindsay Graham stands on the debate between liberty and security:

Sen. Lindsey Graham would propose censoring Americans’ “snail” mail if he thought it would help protect national security, the South Carolina Republican said Tuesday. But for now, he says he doesn’t think it’s necessary.

Faced with questions about the disclosure that the National Security Agency has been collecting phone and email records of citizens, Graham pointed to a World War II-era program in which the federal government censored mail. He said it was appropriate at the time and that he would support reinstating the program if it aided security efforts.

“In World War II, the mentality of the public was that our whole way of life was at risk, we’re all in. We censored the mail. When you wrote a letter overseas, it got censored. When a letter was written back from the battlefield to home, they looked at what was in the letter to make sure they were not tipping off the enemy,” Graham, a member of the Senate Armed Services Committee, told reporters on Capitol Hill. “If I thought censoring the mail was necessary, I would suggest it, but I don’t think it is.”

(…)

“The First Amendment right to speak is sacrosanct, but it has limits,” Graham added. “In World War II, our population understood that what we say in letters could be used against [us by] our enemies. It was designed to protect us and ensure that we would have First Amendment rights because under the Japanese and Nazi regime, they weren’t that big into the First Amendment. We don’t need to censor the mail, but we do need to find out what the enemy’s up to.”

What Graham is referring to, of course, is correspondence between American soldiers overseas and their family and friends back home. There’s obviously a need for the military to ensure that operational security is being maintained in those types of situations, but that’s a far cry from the situation we face today. First of all, we aren’t all members of the military and thus subject to some reduction in rights for the sake of military safety. Second of all, when programs start accessing records of purely domestic correspondence then the rationale that Graham is trying to maintain her obviously falls apart. Where is the government justification for that kind of monitoring without a warrant issued by a judge in a non-secret court? I just don’t see it.

FILED UNDER: National Security, Quick Takes, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. mantis says:

    Second of all, when programs start accessing records of purely domestic correspondence then the rationale that Graham is trying to maintain her obviously falls apart. Where is the government justification for that kind of monitoring without a warrant issued by a judge in a non-secret court? I just don’t see it.

    The justification is that terrorist cells are here in the United States engaging in domestic communication. Basically, the enemy is among us.

  2. edmondo says:

    Before the GOP can read everyone’s snail mail, wouldn’t they have to vote for some subsidies for the USPS? Maybe that’s their quid pro quo?

  3. legion says:

    @edmondo: Dangit, that’s what I came in to say – this could never happen today because Congress would have to give more money to USPS!

  4. gVOR08 says:

    Graham says,

    The First Amendment right to speak is sacrosanct, but it has limits

    Per Wiktionary: Sacrosanct – beyond alteration, criticism, or interference. So I guess Graham means Free Speech is sacred, we’ll put it up on a pedestal and worship it in the abstract. Actually allow it, not so much.

  5. Dave Schuler says:

    Hmm. I’d support taking the members of Congress, putting them against the wall, and shooting them if necessary. “Necessary” is a kind of flexible term. It can mean just about anything you want it to.

  6. PD Shaw says:

    Beginning in the 1830s and until the American Civil War, the US Postmaster General refused to allow the mails to carry abolitionist pamphlets to the South.

  7. Caj says:

    Security over privacy any day. Privacy is no good to anyone if they are dead due to lack of security!! Freedom isn’t free, heard of that saying? Well, security isn’t free either. It’s a trade off!

  8. Fascism? What’s that?

  9. Deserttrek says:

    @edmondo: barry boy is the one breaking the law youngster. this is not a political party issue, it is a freedom and Constitutional issue.

  10. “Where is the government justification for that kind of monitoring without a warrant issued by a judge in a non-secret court? I just don’t see it.”

    Anything can be justified in the name of national security, Doug. I don’t know why you think that any government would go so far and no farther when the population is scared, cowed, or indifferent enough to allow it. If we allow it, eventually it will happen. The Constitution is only as good as the degree to which it’s enforced.

  11. @Caj:

    Keep going in that direction, though, and pretty soon there won’t be anything to trade off.

  12. @Deserttrek: God, I’m going to regret this, but what law, exactly, did President Obama break?

  13. @Dave Schuler:

    Well said. “It’s necessary” in the context of curbing civil liberties is a dangerous phrase.

  14. @Timothy Watson:

    The Fourth Amendment, Timothy, but it’s okay — the FISA Amendments Act of 2008 made it lawful.

  15. wr says:

    So let me see if I’ve got this right — if the government asks an organization about its political actions in order to decide whether they qualify for tax exempt status, that’s an outrage against freedom. But if they monitor all the organization’s communications to see exactly who they contact and for how long, that’s necessary for our freedom.

    Do I have this right?

  16. PD Shaw says:

    @wr: There is a form that is created through a public process by which organizations are asked “the political question.” The IRS would be better served by asking everybody the same question(s). It was their individualized questions that were deemed inappropriate. Very poor approach.

  17. Tillman says:

    The only time it’d be necessary to censor everyone’s mail is if some memetic virus was on the loose, and no one would believe that. Is Lindsay Graham suggesting that the United States is working on a memetic virus to destroy the minds of any who read certain phrases?

    Because wow, taxpayer money at work.

  18. HarvardLaw92 says:

    @Kathy Kattenburg:

    The Fourth Amendment, Timothy, but it’s okay — the FISA Amendments Act of 2008 made it lawful.

    We’ve been over this already.

    You do not own your phone records, therefore you have no 4th Amendment right with regard to them to be violated in the first place. If anybody could possibly assert a privacy complaint here, it would be Verizon, not you.

    There is no expectation of privacy, none, granted under the Constitution with respect to phone records. You cede that expectation the second that you transmit the calling information to the phone company in order to begin the call

    Smith v. Maryland, which you have already been advised about but seem determined to ignore, made that concept exceedingly clear.

    And it didn’t do it in 2008. It did it in 1979.

  19. @HarvardLaw92:

    HL, you’re right, you have made this argument about private companies’ ownership of customer records many times, and it’s irrelevant to the question of whether the government has the right to compel phone and Internet service providers to turn over the calling and email data of all their customers.

    I’m not saying there isn’t a discussion to be had about whether phone companies and ISPs should have the legal right to own their customers’ records. I don’t think they should, but that’s a separate issue.

    What I’m saying is that it’s not an answer to the fundamental issue to tell me that the courts have established that phone companies and ISPs have this right. That doesn’t mean those cases were rightly decided, and they can always be revisited. The fundamental issue here is whether a law that requires private companies to hand over massive amounts of personal data about their customers, indiscriminately, without a warrant, is constitutional. Your argument seems to be, Well, the law says they can so that’s the end of it. And that is just garbage, HL. And that, actually, is my problem with you — not whether it’s true or false that private companies own my information, but that you believe that once you have established that it’s true, that means there is nothing more to be discussed. It’s your Inspector Javert pose that infuriates me. You have no concern about the constitutionality of a government action if you can establish (or think you can) that the courts say it’s constitutional. Alberto Gonzales and John Yoo told us that torture is legal under U.S. law, but that doesn’t mean their reading of the Constitution is correct.

  20. HarvardLaw92 says:

    @Kathy Kattenburg:

    it’s irrelevant to the question of whether the government has the right to compel phone and Internet service providers to turn over the calling and email data of all their customers.

    Get acquainted with the concept of a subpoena duces tecum.

    The fundamental issue here is whether a law that requires private companies to hand over massive amounts of personal data about their customers, indiscriminately, without a warrant, is constitutional.

    Searches require warrants. The production of documents requires a court order (see: subpoena duces tecum mentioned above). If you’d read Smith v. Maryland, you’d know already that the provision of phone records to the police, and the examination of those phone records by the police, does not constitute a search.

    The same goes for bank records (United States v. Miller), and for that matter ANY information you reveal to a third party, whether under expectation of confidence or not.

    That doesn’t mean those cases were rightly decided, and they can always be revisited

    In your non-lawyer opinion. You’ll have to excuse my derision. I tend to have little patience with, or for, armchair attorneys.

    Your argument seems to be, Well, the law says they can so that’s the end of it.

    No, my argument is that constitutional issues are settled by the Supreme Court. The verbiage of the Constitution does NOT mean what Kathy thinks that it means. It means what SCOTUS says that it means, and this has been settled constitutional law now for over 30 years. Hell, they use Smith and Miller as example classes in law school. That’s how entrenched and established these rulings are.

    I get that you disagree with them, but, again, you are not a justice. You aren’t even a lawyer.

    but that you believe that once you have established that it’s true, that means there is nothing more to be discussed.

    Yea, subject matter experts tend to be that way when they are being challenged on their field by amateurs. I imagine that you’d probably argue with your surgeon about the best way to perform surgery as well.

  21. HarvardLaw92 says:

    You have no concern about the constitutionality of a government action if you can establish (or think you can) that the courts say it’s constitutional.

    Hence my ongoing challenge to you.

    I’ve presented a detailed, concise and lengthy explanation of why these orders are constitutional, supported by the relevant precedents.

    If you think that they are unconstitutional, then by all means, make an argument to that effect. Cite precedents. Make a legal argument that goes beyond “I disagree with the court because I’m right and they are wrong. I read the Constitution!”

    It just doesn’t work that way. If you want to be taken seriously, then make a serious argument.

    It’s your Inspector Javert pose that infuriates me.

    LOL, no, it’s being challenged that infuriates you. I’m a lawyer. You aren’t. Whether you like it or not, I know more about this subject than you do.

  22. If you’d read Smith v. Maryland, you’d know already that the provision of phone records to the police, and the examination of those phone records by the police, does not constitute a search.

    But this is not a provision of phone records to the police, or an examination of phone records by the police, is it?

    That’s a rhetorical question.

    .

    LOL, no, it’s being challenged that infuriates you. I’m a lawyer. You aren’t. Whether you like it or not, I know more about this subject than you do.

    I’m not going to respond to this in kind. I’ll just say that if only lawyers are qualified to debate this issue, you should stop talking to me and go debate some of those ACLU lawyers who are filing suit against the government over the NSA phone and email surveillance program. I’m pretty sure they’ll disagree with your take on the law, but you’ll have to find a different way to rebut their arguments than the “I’m a lawyer I know more than you do” line.

  23. HarvardLaw92 says:

    @Kathy Kattenburg:

    But this is not a provision of phone records to the police, or an examination of phone records by the police, is it?

    We must have read different leaked court orders. The one that I read was a secondary order compelling Verizon to provide tangible things to the NSA, issued under the umbrella of a primary application made by the FBI to the court, and granted, to do the same. It wouldn’t be any different if the court had ordered the data provided directly to the court or to a different third party. It’s a permissible purpose.

    What it isn’t is a search.

    you should stop talking to me and go debate some of those ACLU lawyers who are filing suit against the government over the NSA phone and email surveillance program. I’m pretty sure they’ll disagree with your take on the law, but you’ll have to find a different way to rebut their arguments than the “I’m a lawyer I know more than you do” line.

    They lose. A LOT, and there is a reason for that. They’ve challenged Smith and Miller before, and gone down in flames. No court, and certainly not THIS SCOTUS, is going to constrain the state with regard to the obtaining of third party disclosure material.

    Direct me to their briefs though and I’ll be glad to read them. A little humor never hurt anybody, and they are usually good for a laugh.

  24. Mantis says:

    @Kathy Kattenburg:

    I’m pretty sure they’ll disagree with your take on the law, but you’ll have to find a different way to rebut their arguments than the “I’m a lawyer I know more than you do” line.

    You say that as if @HarvardLaw92 hasn’t presented an argument. S/he has. You haven’t. You just assert.

    If you can actually present an argument why records of your use of a private company’s services and network are your physical property and not the business records of that company, you will be making a constitutional argument.. If you cannot make that argument, you haven’t even established that the 4th even applies here. But you don’t seem to want to make an argument at all. You just want to complain about others’ “poses.”

  25. “If you can actually present an argument why records of your use of a private company’s services and network are your physical property and not the business records of that company,…”

    Why would I do that? I never argued that they weren’t the company’s business records. That’s not the point I’ve been arguing. And I’ve said that over and over. There’s a problem with reading comprehension going on here.

  26. @HarvardLaw92:

    “Direct me to their briefs though and I’ll be glad to read them.”

    Normally, I would do that, simply as a courtesy, but I don’t see why I should make even that minimal effort to do something a lawyer is supposed to know how to do. You’re a lawyer, I’m not. Direct yourself to the brief.

  27. mantis says:

    @Kathy Kattenburg:

    That’s not the point I’ve been arguing

    Then you have no argument. You’ve made that clear.

    Normally, I would do that, simply as a courtesy, but I don’t see why I should make even that minimal effort to do something a lawyer is supposed to know how to do.

    Translation: I got nothin.

  28. “Then you have no argument.”

    No, we’re arguing different points.

    “You’ve made that clear.”

    I have made it clear that we’re arguing different points.

    “Translation: I got nothin’.”

    No, there is an ACLU brief. Since HL tells me he is a lawyer and I am not, and since that is true, he should not need me to direct him to the brief. That’s what I said, and it means exactly that, no translation necessary.

  29. HarvardLaw92 says:

    @Kathy Kattenburg:

    I did, and predictably, both lawsuits are a joke.

    The ACLU is asserting (again) the same argument challenging Smith that has failed them in the past.

    “Yea, we get that you’ve established that phone records are not privileged material subject to the penumbras of the 4th Amendment, and that obtaining them via court order doesn’t constitute a search, and that you’ve turned our argument away before on multiple occasions, but let’s try it yet again …”

    While they tried to venue shop,I’ll be amazed if they even prevail at the district level. Smith is clear on this point, and SCOTUS has let it stand for close to 35 years now. Again, there is a reason that the ACLU loses so god damn always. All passion – no stratagem and no sense.

    The Strange’s lawsuit is just that – strange, and somewhat pathetic. I sympathize with them over their dead son, but a $3 billion class-action proceeding predicated on “alleged surveillance” but unsubstantiated in even the most tenuous way by even their own pleading. They’re essentially asserting what you’ve been alluding to:

    “I just know that I’ve been wiretapped. I can’t prove it, but I just KNOW that it happened. So hand me $3 billion.”

    I was wrong about one thing though. It didn’t make me laugh. It made me yawn.

  30. @HarvardLaw92:

    I do not know what you are referring to. I was referring to ACLU v. Clapper. There’s nothing in there about a family named Strange.

  31. HarvardLaw92 says:

    @kathy kattenburg:

    No, we’re arguing different points.

    LOL, finally something I agree with. I’m arguing the law and you’re arguing, well, something else.

  32. HarvardLaw92 says:

    @Kathy Kattenburg:

    I do not know what you are referring to. I was referring to ACLU v. Clapper. There’s nothing in there about a family named Strange.

    There are multiple lawsuits. ACLU has brought what is essentially a repeat of their 2012 down in flames disaster Amnesty et al. v. Clapper, in which SCOTUS blew them out of the water on standing, but on an even weaker argument than the one they died with in Amnesty.

    Apparently they think – “ok, we’ll get out the whiteout and replace 1881a with 1861a. Yea, we still don’t have standing, and we’re on even shakier ground than we were before, but maybe they won’t notice.” It’s antics.

    The other one is a pathetic attempted class-action in which the parents of a dead SEAL are seeking $3 billion based on their belief that they have been subjected to surveillance. Aside from the fact that they can’t prove this assertion, and don’t even have any evidence that suggests they might have been so subjected, they’re trying to sue a bunch of insulated defendants.

    Namely Obama, Holder, Keith Alexander, Verizon, a list of government agencies and the judge who signed this order.

    Obama can’t be sued for official acts of his office. Nor can Holder. Nor can a sitting federal judge. Any interrogatories directed at Alexander will be squashed in the interest of national security, and that leaves them fighting a list of agencies and Verizon, which has billions in its pocket and an army of lawyers on retainer.

    It’s such a sad piece of legal comedy that it borders on pathetic. That one I suspect will just get tossed for being specious, and frankly, that’s the most merciful thing the court could do for these plaintiffs.

  33. @HarvardLaw92:

    “I’m arguing the law and you’re arguing, well, something else.”

    No, I’m arguing the law, too.

  34. “Aside from the fact that they can’t prove this assertion,,,,”

    Why can’t they prove it?

    “Any interrogatories directed at Alexander will be squashed in the interest of national security,…”

    Oh wait, never mind. That’s why they can’t prove it. But of course that doesn’t mean the evidence to prove their charge doesn’t exist. It just means the government refuses to provide it because, national security. It’s a great out. I mean, obviously, of course, no plaintiff can ever prove anything, no matter how much evidence exists, if they aren’t allowed to present the evidence.

  35. “It’s such a sad piece of legal comedy that it borders on pathetic. That one I suspect will just get tossed for being specious, and frankly, that’s the most merciful thing the court could do for these plaintiffs.”

    My god, you are a horrible person. I just can’t refrain from saying that anymore.

  36. HarvardLaw92 says:

    @Kathy Kattenburg:

    Why can’t they prove it?

    They have no evidence at all that they have ever been subjected to surveillance. They aren’t asserting that their phone records were examined along with everybody elses. They are asserting “well, if they looked at phone records, then they tapped our phones too.” It’s information and belief. They believe that their phones were tapped.

    It would be like me suing my dentist because I believe that he put a radio in my head. No proof exists of this. It’s simply my belief that it happened. You can imagine how short the lifespan of such a specious case would be.

    You have to have cause to bring a legal action. Without it, there is no standing to sue in the first place because there is no harm for which one can seek a remedy. These folks have no cause. No standing. They are trying to salve their grief by lashing out at those they hold responsible for causing it.

    I get that. I do, but whoever is representing them in this case needs to be disbarred. Or tarred and feathered. It’s just shameful.

  37. HarvardLaw92 says:

    @Kathy Kattenburg:

    My god, you are a horrible person. I just can’t refrain from saying that anymore.

    The alternative is to drag these people through a farce of a trial, charge them a fortune for a stinker that was doomed from the outset and prey on their grief in the bargain.

    You think I’m horrible? I’d never do that to these people. I’d tell them upfront that they don’t have a case, and save them the time, embarrassment and grief involved. What I would do is direct them to the best grief counselor I could find and pay for it myself. That would be the human thing to do. Whoever is handling this case for them is victimizing them all over again.

  38. HarvardLaw92 says:

    @Kathy Kattenburg:

    Oh wait, never mind. That’s why they can’t prove it. But of course that doesn’t mean the evidence to prove their charge doesn’t exist. It just means the government refuses to provide it because, national security. It’s a great out. I mean, obviously, of course, no plaintiff can ever prove anything, no matter how much evidence exists, if they aren’t allowed to present the evidence.

    No judge is going to allow a fishing expedition in discovery through classified documents, or indeed at all, in order to establish a cause for action. You have to go in having established that for the suit to be viable in the first place. These people don’t even have a factual basis for going to trial.

    In other words, it isn’t a case of “I think you wiretapped me, but I have no factual basis for believing that I was wiretapped at all, so I’m going to sift through all of your documents until I find one that establishes a factual basis for me to assert a claim.”

    It’s “I have a factual basis for asserting a claim. I have an established, actionable harm, and I’m going to use discovery to find evidence that proves that you are responsible for that harm.”

    These people are filing a suit without a factual claim and expecting the courts to help them establish one. It doesn’t work that way.

    Colloquial equivalent? It’d would be like Nicole Brown, instead of having been killed, simply vanishing instead, and her parents bringing a civil suit trying to assert that OJ was responsible for her death. They can’t even establish that she’s dead in that scenario. They are seeking relief for a harm that they can’t prove ever happened.”

    See why the case is a stinker now?

  39. “They have no evidence at all that they have ever been subjected to surveillance.”

    But how can you know there’s no evidence of that if they can’t even get defendant to provide the documents that contain the evidence?

    I’m assuming their son killed himself, from what you say about the background of the case.

  40. “See why the case is a stinker now?”

    Not yet. If the son’s death was directly connected to the surveillance, then that’s the harm. Did the surveillance drive him to suicide? Is that what they’re claiming?

  41. HarvardLaw92 says:

    It’s Larry Klayman. I should have expected that one. The guy is a fruitloop.

  42. HarvardLaw92 says:

    But how can you know there’s no evidence of that if they can’t even get defendant to provide the documents that contain the evidence?

    That isn’t how it works. You have to have a factual basis for a claim before you file it, otherwise it’s a frivolous lawsuit and it’ll get tossed. The purpose of the courts is to assign redress for legitimate harms, not to help you figure out if you’ve been harmed in the first place.

    Normally, that’s what you have an attorney for. These people are trusting a looney tune.

    I’m assuming their son killed himself, from what you say about the background of the case.

    No. He died along with many other service members when their helicopter was shot down in Afghanistan. Ever since then, the parents have gone off the deep end with all sorts of conspiracy theories and assertions. Their grief, or inability to deal with it, has led them off the ledge. Now they think that their phones are being tapped because they criticized the government.

    Notice I said think, because they have no evidence at all that wiretapping ever occurred. They are convinced that it happened because they want to believe that it happened.

    Unfortunately for them, going to court requires a bit more than ” I believe this, therefore it must be true.” Their lawyer is using them in pursuit of his own nutty agenda. He’s a WND’er who filed a lawsuit trying to knock Obama off the Florida ballot because he was “born in Kenya”.

    These people and their grief are being used, and it will end badly.

  43. Okay, their son died in a helicopter crash, and the.parents think the crash was caused by poor surveillance?

    I’m just trying to get a handle on this. It’s not making sense.

  44. HarvardLaw92 says:

    @kathy kattenburg:

    Okay, their son died in a helicopter crash, and the.parents think the crash was caused by poor surveillance?

    No, their son died when his helicopter was shot down over Afghanistan.

    After that, the parents went sort of off the deep end, criticizing the government and such, I suspect because they were/are unable to deal with their grief and they need someone/somebody to lash out at because of it. I empathize with that. I don’t how I would manage to deal with it either, but anyway …

    Now they are convinced that, because of their criticisms, they have been subjected to special surveillance as enemies of the government.

    They have no factual basis for believing this. They just want to believe it, so they believe it. Now they have hooked up with a looney tunes lawyer / birther / WND columnist who is using them in a silly attempt to push his own anti-government agenda.

    Frankly, I feel sorry for them and I’m (even more) disgusted with their attorney (than I already was). The guy is a certifiable whackjob. Mostly this is his creation. He’s just trying to use them to push his own crazy agenda.

  45. Jack says:

    @Caj: You’re an idiot.

  46. Barry says:

    @Deserttrek: Sorry, but did you have an actual point?

  47. Barry says:

    @Timothy Watson: “God, I’m going to regret this, but what law, exactly, did President Obama break? ”

    I’m not sure:

    Presidenting while black, presidenting while Democratic, …

  48. Barry says:

    @wr: “So let me see if I’ve got this right — if the government asks an organization about its political actions in order to decide whether they qualify for tax exempt status, that’s an outrage against freedom. But if they monitor all the organization’s communications to see exactly who they contact and for how long, that’s necessary for our freedom.”

    Yes, and if the first government agency is open to auditing and investigation, that makes it even a worse – dare I say Nazi?!?!?! – horror. While if the second operates in secrecy, that makes it even more Christo-American-goodiness.

  49. Barry says:

    @HarvardLaw92: “Searches require warrants.”

    Secret warrants by secret courts by judges who have to be approved for clearance.

  50. Gromitt Gunn says:

    @Caj: I’m saying this without any appreciation of irony, given that you’ve been presenting yourself as an advocate for the liberal-media-academic cabal since you appeared shortly after a certain Russian ruler took his leave, but if you were a stock, I would short you.

  51. mantis says:

    @Barry:

    Secret warrants by secret courts by judges who have to be approved for clearance.

    Courts established by legislation enacted in 1978 and well known to the American public are not “secret.”

  52. mantis says:

    @kathy kattenburg:

    I’m just trying to get a handle on this. It’s not making sense.

    Confused, lacking facts, but dead set in your opinions. That about sums you up.

  53. Tillman says:

    Courts established by legislation enacted in 1978 and well known to the American public are not “secret.”

    Yeah, can we get this straight, people? We know the name of the court and what it does. That means it isn’t secret.

    You can’t know about something and also claim it is a secret to you. You can claim you were ignorant of it, but that doesn’t sound nearly as cool.

  54. stonetools says:

    Look, let’s not beat up on Kathy. Her intentions are good. Her problem-shared by many civil libertarians here- is that she disagrees with law , and to a certain extent, with modern society. She ( and Doug, and Snowden, and Greenwald) would like to return to those halcyon days, when “gentlemen did not read each others mail.”

    IMO, those days are dead and gone forever. They died all the way back in the 1930s, when US government decided that it actually would be a good idea to able to read, for example, Japanese diplomatic and military communications and Al Capone’s telephone messages. Those good old days aint coming back.

    I think that Kathy and civil libertarians would be better served by not trying to stand athwart history, but by suggesting specific reforms. Do you agree with Snowden that we should just dismantle the current surveillance system altogether? Do you want to replace the FISA court with some other system? What’s wrong with current Congressional oversight, and how can it be improved?
    Let’s have something more than hand-wringing that we are living in 2013.

  55. Mantis and Tillotson, you need to get up to speed. The FISA legislation that was passed in 1978 is not the same legislation anymore. It was amended by the FISA Amendments Act of 2008 in order to incorporate the warrantless surveillance that WAS illegal under FISA as it stood then. That Bush admin program WAS secret. No one knew about it until it was outed by the New York Times. There was a huge outcry, both about the illegality of what was being done (Americans being spied on without warrants) and the fact that it was a secret program. In response to that outcry, Congress amended FISA to permit that illegal activity. It was illegal from 1978 to 2008, when Congress solved the problem of warrantless surveillance being illegal under FISA by amending FISA to make warrantless surveillance legal. When Congress did that, it also stipulated that the FISC (courts established under FISA) would operate in secret, with the government (now the Obama admin) presenting the court with warrant or subpoena requests, the content of which were secret, and receiving said warrants or subpoenas from the court, also in secret. The fact that the court exists is not secret, but its operation is. The warrants are secret and the reasoning/evidence for requesting them are secret, and the judge’s decision whether to grant them are secret — *not just from the general public, but from Congress as well.*

    The FISA Amendments Act of 2008 also lowered the standard for getting a warrant from probable cause to “reasonable suspicion.”

  56. @stonetools:

    I don’t think there’s anything wrong with the system as it was from.1978 to 2008. The reforms made to the law made in 1978 to prevent a recurrence of Nixon-era abuses were working fine. Let’s go back to that.

  57. mantis says:

    @Kathy Kattenburg:

    amending FISA to make warrantless surveillance legal.

    Bullshit. If you get a warrant from the FISA court, it’s not “warrantless.” The Bush administration conducted warrantless surveillance without even involving the court.

    When Congress did that, it also stipulated that the FISC (courts established under FISA) would operate in secret, with the government (now the Obama admin) presenting the court with warrant or subpoena requests, the content of which were secret, and receiving said warrants or subpoenas from the court, also in secret.

    That’s not new. The court has always been that way. Don’t tell me I need to catch up when you clearly don’t know what you are talking about. It makes you look a fool.

    The FISA Amendments Act of 2008 also lowered the standard for getting a warrant from probable cause to “reasonable suspicion.”

    Not, it did not. Do you just make this stuff up?

  58. “If you get a warrant from the FISA court, it’s not “warrantless.””

    The problem is that the way the NSA program is being conducted is not in accordance with what FISA allows. FISA stipulates that the govt is allowed to conduct surveillance on non-U.S. persons living outside the United States without getting an individualized warrant, but must have an individualized warrant to conduct surveillance on U.S. persons located anywhere, whether they are inside or outside the United States. But the NSA program that has just been made public by Edward Snowden sweeps up all the electronic and phone communications of everyone in the U.S. — every single American, every single person in the United States. The apologists for this program say it’s “just” the metadata, and no one is looking at or listening to the content, but there’s really no way to know that that’s not happening, and in fact it HAS happened, in some instances that became public. The point is that vacuuming up the phone and email records of every individual in this country creates huge amounts of risk for abuse of that information. That risk is heightened by the fact that the FISC operates in secret — that no one knows whether there’s abuse or not. And in fact, between 1978 and 2012, there were almost 34,000 requests from the government for court orders, and out of that number, 11 were turned down. ELEVEN court order requests out of almost 34,000. And just in the past 10 years, the number of government requests for court orders approving surveillance has gone up by 85%.

    It’s obvious to any reasonably intelligent person who cares about the Constitution and personal liberty that the NSA program gives the government far too much power. There is absolutely no reason why the U.S. government needs to have the communication records of 316 million Americans.

    ” Do you just make this stuff up?”

    I wish I were making it up.

  59. Tillman says:

    @Kathy Kattenburg: The problem is you’re taking “But the NSA program that has just been made public by Edward Snowden sweeps up all the electronic and phone communications of everyone in the U.S. — every single American, every single person in the United States” to mean that they’re somehow paying attention to all of it. Which is impossible. That’s a technological hurdle that won’t be surmounted for another decade at least. Then, you’ll have something closer to a cogent argument.

    Further, the oversight provided by the FISC is damn certain better than what the Bush NSA was attempting to do, and the outcry over the revelations of its activities was deserved. That’s why we even have FISC oversight now. We have judges looking at this stuff. Now if only they’d let Obama appoint some more judges…

    Also, am I Tillotson or…? I’m confused.

  60. @Tillman:

    Well, we already know they pay attention to some of it when they’re not supposed to, but as long as they aren’t paying attention to all of it, no worries that they have all of it. When they learn how to pay attention to all of it in 10 years, we can just ask them not to.

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