This week, Congress prepares to abuse the Constitution again, by extending its 2008 amendments to the Foreign Intelligence Surveillance Act (FISA). With the House of Representatives poised to vote today on a premature five year extension, will members remember what they heard when theatrically reading the Constitution on the House floor, or instead entrench the Bush-Cheney legacy beyond even the next administration?
When Congress first voted back in 2008 to give the National Security Agency the power to eavesdrop on any—in other words, every–American without any reason for individual suspicion, it did so without a full picture of what it allowed. Indeed, the full contours of the program remain secret even today.
The only reason the NSA's spying powers have survived this long is because courts have refused to consider claims that they are unconstitutionally invasive. The Supreme Court will consider one such case this fall — which, if successful, will merely allow the several year process of a litigation challenge to finally begin.
Even though much of it remains shrouded in secrecy, we do know a few things about the NSA's warrantless spying program authorized by FISA.
We know that it began illegally, without any authorization by Congress and in clear violation of the FISA law crafted by Congress in the 1970s to stop our government from spying on Americans.
We know it is so vast and unchecked that, nearly ten years ago, Attorney General John Ashcroft refused to authorize it, even despite coercion from the Bush White House.
We know that an architect of the program, alarmed at how his work was co-opted to abuse the rights of Americans, blew a whistle about fraud and waste, only to face prosecution by the Obama Administration for espionage–until a federal court ultimately told the government to stop chasing a loyal servant of the American people.
We know that the NSA has violated even this incredibly permissive law, abusing its own powers and the rights of untold numbers of Americans. Our government has admitted to that much, without offering any way to know how widespread those violations have been — or remain.
We know that the executive branch currently interprets parts of other surveillance laws in secret, allowing government activities even beyond the intentions of their authors.
We know that congressional Democrats–including then Senator Obama–joined their Republican colleagues in 2008 to approve FISA, even while both parties paid lip service about defending constitutional values in Washington. Despite the partisan rancor apparent on many issues, Congress marches in lockstep on national security, elevating government power well beyond constitutional limits.
We know that, despite Washington's wrangling over the budget crisis, the NSA has never justified its massive costs to the American people. In fact, Congress knows neither what the program costs, nor when the NSA's program has actually helped national security, let alone whether those costs are justified!
We know that FISA has enabled the most pervasive state surveillance system ever known to humankind. The only settings in which powers like it have ever existed are dystopian science fiction novels.
Even the former Soviet Union and contemporary China, for all their efforts to control their people, lacked the resources to conduct the kind of monitoring that the NSA does every day — not only on terror suspects, but on you and your family.
We also know that the Obama administration has supported the Bush-Cheney NSA policy, extending it once before — even though Senator Obama, before winning the White House, promised at one point to vote against it. Until President Obama signed a 2011 law granting our military the potential power to detain any American indefinitely without proof of crime, FISA was the high water mark of the post 9-11 national security state.
Finally, we know that the American people can still defend our rights when aroused. Earlier this year, a grassroots firestorm stopped SOPA and PIPA before they transformed the Internet.
Congress already gave our government the power to conduct mass domestic spying by approving FISA four years ago, but a grassroots clamor this fall could stop that power from being renewed in the Senate — or at least force Congress to finally do its job and ask tough questions that should have been answered long ago, before writing the NSA yet another blank check.