FacebookTwitterGoogle+RedditEmail

The Feinstein Reform Formula

by BINOY KAMPMARK

It’s clear that Feinstein thinks that if you’re going to legalize bulk collection you’ve got to claim to be banning it.

Julian Sanchez, Cato Institute, Oct 31, 2013

Commentators should not be surprised.  The public should not be surprised.  Students of Congress’ venal and sometimes vacuous antics should not be surprised.  But Senator Dianne Feinstein of the Senate Intelligence Committee was always going to make good her promise to reform NSA practices while not reforming them at all.

So what does this very rough jewel of reform, the FISA Improvements Act of 2013, supposedly do?  First, the candyfloss: making the NSA issue public reports about how often it consults and questions its databases; opening the FISA court process to greater involvement from external advocates by way of amicus briefs.  The NSA will also report to Congress on significant FISA court opinions, though this will only come in the form of summaries.  The full decisions will not be released.

Where the bill is an abysmal failure is the area most people have an interest in: the issue of bulk collection of calls and its presumptive violation of privacy.  A reading of the bill suggests that it does prohibit bulk collection (section 2 (a)(i)) only to then explain extensively the various supplemental procedures that authorise the government to retain bulk records.  As Adam Serwer noted, “The Senate intelligence committee just gave the National Security Agency the best bill it could have asked for” (MSNBC, Oct 31).

Feinstein’s own statement is revealing about this double play.  First, the program is legal and justified.  “The NSA call-records program is legal and subject to extensive congressional and judicial oversight.”  The underlying message here is that reforming what is legal to begin with is hardly necessary.  Then, she claims that “more can and should be done to increase transparency and build public support for privacy protections in place.”  This is Feinstein’s Halloween gift to the American public, the song and dance routine on reform that ends with the status quo triumphant.

In June, it was revealed that the NSA had used a rather elastic interpretation of s. 215 some six years ago to engage on massive surveillance and gathering of every phone record in the United States.  The provision had found its way into the Patriot Act in 2006 to authorise the use of secret warrants to gather virtually any type of “tangible” record.  An unconstitutional program that commenced in 2001 was thereby expanded.  As Trevor Timm of the Electronic Frontier Foundation explains, “This is not an NSA reform bill, it’s an NSA entrenchment bill” (EFF, Oct 31).

According to Michelle Richardson of the ACLU, “I think they want to create a veneer of oversight and privacy without substantively changing the programs, and you just can’t do that.”  Unfortunately, Feinstein thinks she can.   In other words, the operative nature of s. 215 is that it can only be used if the rules are complied with, thereby allowing the codification of an insidious practice.

This peculiarity in legislation has precedent.  A way of targeting a practice deemed inappropriate, if not patently illegal, is to legalise it.  It is, in fact, one of the oldest rules in the book of legislation.  Since surveillance is habitual, the collection of data on US citizens and non-citizens constant despite calls to the contrary, why not regulate it by congressional fiat?

This is reminiscent of the argument on torture warrants trotted out by a somewhat blunted Alan Dershowitz when water boarding by US agents became all the rage: torture might be illegal under US and international law but it is unavoidable.  States and their agents can’t help themselves when confronted with terror suspects.  Hence the need to regulate it via the judicial process.  The only catch here is that no such process can ever be regulated.  The emphasis must always be on absolute prohibition.  Such laws cannot be picked, chewed and adjusted.  Elasticity has no part to play in freedoms that should otherwise be indivisible.

The lawmakers on the Hill were always going to be divided on the subject of how to go forth “reforming” the NSA.  Democratic Senator Patrick Leahy and Republic Rep. Jim Sensenbrenner are of the view that manic bulk gathering of data is an unjustified violation of privacy.  Their own version of reform – the Leahy-Sensenbrenner bill, is also on the cards and will do battle with Feinstein’s version.  The two senators on the Intelligence Committee who might have made a difference – Oregon Democratic Senator Ron Wyden and Colorado Democratic Senator Mark Udall – were outgunned in the committee, which fittingly held their meeting in hermetic, closed session.  The bill passed 11-4.

Udall’s statement on Thursday was clear.  “The NSA’s ongoing, invasive surveillance of Americans’ private information does not respect our constitutional values and needs fundamental reform – not incidental changes.”  In the reform wars over the NSA, there is little doubt that the information gatherers and their backers have drawn first blood.  But the days and battles promise to be long on this subject.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

More articles by:
May 24, 2016
Sharmini Peries - Michael Hudson
The Financial Invasion of Greece
Jonathan Cook
Religious Zealots Ready for Takeover of Israeli Army
Ted Rall
Why I Am #NeverHillary
Mari Jo Buhle – Paul Buhle
Television Meets History
Robert Hunziker
Troika Heat-Seeking Missile Destroys Greece
Judy Gumbo
May Day Road Trip: 1968 – 2016
Colin Todhunter
Cheerleader for US Aggression, Pushing the World to the Nuclear Brink
Jeremy Brecher
This is What Insurgency Looks Like
Jonathan Latham
Unsafe at Any Dose: Chemical Safety Failures from DDT to Glyphosate to BPA
Binoy Kampmark
Suing Russia: Litigating over MH17
Dave Lindorff
Europe, the US and the Politics of Pissing and Being Pissed
Matt Peppe
Cashing In at the Race Track While Facing Charges of “Abusive” Lending Practices
Gilbert Mercier
If Bernie Sanders Is Real, He Will Run as an Independent
Peter Bohmer
A Year Later! The Struggle for Justice Continues!
Dave Welsh
Police Chief Fired in Victory for the Frisco 500
May 23, 2016
Conn Hallinan
European Union: a House Divided
Paul Buhle
Labor’s Sell-Out and the Sanders Campaign
Uri Avnery
Israeli Weimar: It Can Happen Here
John Stauber
Why Bernie was Busted From the Beginning
James Bovard
Obama’s Biggest Corruption Charade
Joseph Mangano – Janette D. Sherman
Indian Point Nuclear Plant: It Doesn’t Take a Meltdown to Harm Local Residents
Desiree Hellegers
“Energy Without Injury”: From Redwood Summer to Break Free via Occupy Wall Street
Lawrence Davidson
The Unraveling of Zionism?
Patrick Cockburn
Why Visa Waivers are Dangerous for Turks
Robert Koehler
Rethinking Criminal Justice
Lawrence Wittner
The Return of Democratic Socialism
Ha-Joon Chang
What Britain Forgot: Making Things Matters
John V. Walsh
Only Donald Trump Raises Five “Fundamental and Urgent” Foreign Policy Questions: Stephen F. Cohen Bemoans MSM’s Dismissal of Trump’s Queries
Andrew Stewart
The Occupation of the American Mind: a Film That Palestinians Deserve
Nyla Ali Khan
The Vulnerable Repositories of Honor in Kashmir
Weekend Edition
May 20, 2016
Friday - Sunday
Rob Urie
Hillary Clinton and Political Violence
Andrew Levine
Why Not Hillary?
Paul Street
Hillary Clinton’s Neocon Resumé
Chris Floyd
Twilight of the Grifter: Bill Clinton’s Fading Powers
Eric Mann
How We Got the Tanks and M-16s Out of LA Schools
Jason Hirthler
The West’s Needless Aggression
Dan Arel
Why Hillary Clinton’s Camp Should Be Scared
Robert Hunziker
Fukushima Flunks Decontamination
David Rosen
The Privatization of the Public Sphere
Margaret Kimberley
Obama’s Civil Rights Hypocrisy
Chris Gilbert
Corruption in Latin American Governments
Pete Dolack
We Can Dream, or We Can Organize
Dan Kovalik
Colombia: the Displaced & Invisible Nation
Jeffrey St. Clair
Fat Man Earrings: a Nuclear Parable
Medea Benjamin
Israel and Saudi Arabia: Strange Bedfellows in the New Middle East
FacebookTwitterGoogle+RedditEmail