Late this afternoon, I was informed that the only NSA reform measure to pass either chamber of Congress this year–the Lofgren/Massie amendment to the FY15 DoD approps bill–is being stripped out of that bill as part of the House-Senate deal on the so-called “CRomnibus”. I wrote about this amendment and it's importance recently, but the consequences of not getting it into law seem to have escaped folks in the Congressional leadership. Let me recap.
To date, the Congress as an institution has failed to pass into law a single provision to rein in the NSA's out-of-control blanket surveillance of every American. Congress has also failed to stop NSA and the Justice Department from pressuring American tech companies to build in surveillance “back doors” to their products to facilitate NSA surveillance (“back doors” which would, of course, also be exploitable by every hostile intelligence service and competent hacker in the world). So if the Massie/Lofgren amendment is ripped out of the DoD appropriations bill, the message from the House and Senate leadership will be clear: the Fourth Amendment is history, and if U.S. businesses continue to be seen as tools of NSA (and lose billions in sales and thousands of jobs in the process), so be it…because, ISIS/9-11/whatever.
The fight over the Constitution centered around increasing individual protections against an over-reaching government. Anti-federalists warned at the time about the dangers of standing armies and permanent military establishments, which is why they opposed both and opposed an overly-powerful executive branch. The last 13 years have given us more than ample proof that their fears were both prophetic and justified.
Despite their sweeping nature, the PATRIOT Act and FISA Amendments Act (FAA) are clearly viewed by the executive as at best minimalist frameworks within which they can find clever ways to still take the action they desire; they do not regard these laws as truly legally-binding “red lines” not to be crossed…unless a federal court outright rules the activity unconstitutional, and the court actually has to be aware of the program in order to be able to render such a ruling.
Remember that the ink on the 2001 AUMF was not even dry when they started STELLAR WIND…and once the program became public via Jim Risen’s piece in December 2005, Congress went through contortions for nearly three years trying to make it legal ex post facto, first via the PAA and ultimately with the FAA.
Viewing statutes and courts as obstacles to be overcome or bypassed is behavior that will not cease until the executive branch is confronted with an obstacle they cannot overcome…or real legal and/or oversight consequences they cannot escape.