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Surveillance restrictions entirely fail — no real Congressional support, new technology and creative interpretations of law.
Waldman 15 — Paul Waldman, senior writer at The American Prospect, blogger for the Washington Post, 2015 (“A reality check on the future of government spying,” Washington Post, June 3rd, Available Online at Accessed 06-08-2015)
It’s tempting to hail the passage yesterday of the subtly-named USA Freedom Act as a victory for civil liberties in America and a step toward a healthy recalibration of the government’s surveillance policies. But if that’s your feeling today, you might want to think twice.
Not only are the changes the Freedom Act makes to existing practices relatively minor, both parties have signed on with the dramatic expansion of surveillance on law-abiding Americans that occurred after September 11. And both will continue to support it.
The Freedom Act does take the bulk collection of Americans’ telephone records out of the hands of the National Security Agency and leaves those records with the phone companies; it sets up procedures for the NSA to get access to those records when it wants to. But the truth is that this program wasn’t particularly useful for the NSA to begin with. The government has been unable to point to a single terrorist attack that was thwarted by the use of these records. Not only that, just last month an appeals court ruled that the bulk collection program went way beyond anything envisioned by the section of the USA Patriot Act that was used to justify it, and it was therefore illegal.
That doesn’t mean this new law isn’t significant, because anything that dials back the surveillance contained in the Patriot Act is significant. But let’s not forget that had Edward Snowden not revealed the existence of this program, the Obama administration would have been happy to keep it secret from the public indefinitely. It was only once the program’s existence was revealed that President Obama came out in favor of taking the records out of the NSA’s hands. Even if many Republicans (including Mitch McConnell) would have preferred to keep the bulk collection going as it was, we still have a bipartisan preference in Washington for keeping the gargantuan surveillance apparatus we set up after 9/11 in business.
You might not have expected that from Barack Obama if you were a liberal who supported him over Hillary Clinton in the 2008 primaries, concluding that he was the dove while she was the hawk because of his opposition to the Iraq War. As a senator, Obama had been quite active in proposing reforms to the government’s surveillance powers; as president, most of what he advocated has fallen by the wayside.
And is Clinton going to move to restrict the government’s surveillance powers if she’s elected president? There’s no particular reason to believe she will. Up until now Clinton has been vague about what she might do when it comes to surveillance; when she’s asked about it, her answers tend to go like this: Yes there are concerns about privacy, we have to balance that with security, it’s something I’ll be thinking about. Yes, she supported the Freedom Act, but it remains to be seen whether she’ll go into detail about any other particular type of surveillance she’d like to restrict.
And let’s not forget that the NSA and other government agencies are certain — not possible, not likely, but certain — to come up with new ways to spy on Americans as new technologies become available. Just as the NSA did with the bulk phone data collection, they’ll probably take a look at earlier laws and decide that there’s a legal basis for whatever new kind of surveillance they want to begin — and that it’s best if the public didn’t know about it.
Indeed, just this week an investigation by the Associated Press revealed that the FBI is using aircraft with advanced cameras to conduct investigations without warrants. That’s a relatively mundane use of technology, but there will always be new tools and capabilities coming down the pike, and the impulse will always be to put them into operation, then figure out afterward if it’s legally justifiable.
The story of the bulk telephone data collection tells us that the only thing likely to restrain the expansion of government surveillance is public exposure. If you’re hoping that politicians who care about privacy will do it on their own, you’re likely to be disappointed.
Alternate Rationale — the government will find another way to get the same data. FISA Court is unable to intervene.
Ackerman 15 — Spencer Ackerman, national security editor for Guardian US, former senior writer for Wired, won the 2012 National Magazine Award for Digital Reporting, 2015 (“Fears NSA will seek to undermine surveillance reform,” The Guardian, June 1st, Available Online at Accessed 06-08-2015)
The USA Freedom Act is supposed to prevent what Wyden calls “secret law”. It contains a provision requiring congressional notification in the event of a novel legal interpretation presented to the secret Fisa court overseeing surveillance.
Yet in recent memory, the US government permitted the NSA to circumvent the Fisa court entirely. Not a single Fisa court judge was aware of Stellar Wind, the NSA’s post-9/11 constellation of bulk surveillance programs, from 2001 to 2004.
Energetic legal tactics followed to fit the programs under existing legal authorities after internal controversy or outright exposure. When the continuation of a bulk domestic internet metadata collection program risked the mass resignation of Justice Department officials in 2004, an internal NSA draft history records that attorneys found a different legal rationale that “essentially gave NSA the same authority to collect bulk internet metadata that it had”.
After a New York Times story in 2005 revealed the existence of the bulk domestic phone records program, attorneys for the US Justice Department and NSA argued, with the blessing of the Fisa court, that Section 215 of the Patriot Act authorized it all along – precisely the contention that the second circuit court of appeals rejected in May.
Compliance is a joke — the oversight agencies are inept and the NSA and FBI refuse to be monitored, even by the Justice Department.
Schulberg and Reilly 15 — Jessica Schulberg, reporter covering foreign policy and national security for The Huffington Post, former reporter-researcher at The New Republic, MA in international politics from American University, and Ryan J. Reilly, reporter who covers the Justice Department and the Supreme Court for The Huffington Post, 2015 (“Watchdog Finds Huge Failure In Surveillance Oversight Ahead Of Patriot Act Deadline,” Huffington Post, May 21st, Available Online at Accessed 06-05-2015)
WASHINGTON -- In a declassified and heavily redacted report on a controversial Patriot Act provision, the Justice Department’s inspector general found that the government had failed to implement guidelines limiting the amount of data collected on Americans for seven years.
Section 215 of the Patriot Act, which is set to expire June 1 unless Congress reauthorizes it, has been the legal basis for the intelligence community’s bulk metadata collection. As a condition for reauthorization back in 2005, the Justice Department was required to minimize the amount of nonpublic information that the program gathered on U.S. persons. According to the inspector general, the department did not adopt sufficient guidelines until 2013. It was not until August of that year -- two months after the bombshell National Security Agency disclosures by Edward Snowden -- that Justice began applying those guidelines in applications to the Foreign Intelligence Surveillance Act court, the secretive body that approves government surveillance requests.
“It’s an indictment of the system of oversight that we’ve relied upon to check abuses of surveillance powers. The report makes clear that, for years, the FBI failed to comply with its basic legal requirements in using Section 215, and that should trouble anyone who thinks that secret oversight is enough for surveillance capabilities that are this powerful,” Alex Abdo, a staff attorney at the American Civil Liberties Union, told HuffPost.
“The report confirms that the government has been using Section 215 to collect an ever-expanding universe of records. Given the timing, it’s particularly significant,” he continued referring to the looming expiration date.
At times during that seven-year period, the report noted, the government blocked the Justice Department's Office of the Inspector General from determining whether the minimization guidelines had been implemented:
The FBI in the past has taken the position, over the OIG’s objections, that it was prohibited from disclosing FISA-acquired information to the OIG for oversight purposes because the Attorney General had not designated anyone in the OIG as having access to the information for minimization reviews of other lawful purposes, and because there were no specific provisions in the procedures authorizing such access.
Link –Executive Circumvention
The president will use signing statements to ignore the laws that he signs — empirically proven on surveillance and War on Terror.
Van Bergen 6 — Jennifer Van Bergen, JD, author of The Twilight of Democracy: The Bush Plan For America, Professor at Santa Fe Community College, 2006 (“The Unitary Executive: Why the Bush Doctrine Violates the Constitution,” Couterpunch, January 12th, Available Online at Accessed 06-07-2015)
When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.
This news came fast on the heels of Bush’s shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.
And before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.
All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: Presidential power must be unilateral, and unchecked.
But the most recent and blatant presidential intrusions on the law and Constitution supply the verse to that refrain. They not only claim unilateral executive power, but also supply the train of the President’s thinking, the texture of his motivations, and the root of his intentions.
They make clear, for instance, that the phrase "unitary executive" is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.
The President will explicitly violate legislative restrictions on surveillance during the war on terror. The resulting conflict will endanger the rule of law and impair wartime decisions.
Lobel 8 — Jules Lobel, Professor of Law at the University of Pittsburgh, 2008 (“Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War,” Ohio State Law Journal, Vol. 69, 2008, pp.391-467, Available Online at Accessed 05-29-2015)
The critical difficulty with a contextual approach is its inherent ambiguity and lack of clarity, which tends to sharply shift the balance of power in favor of a strong President acting in disregard of congressional will. For example, the application of the Feldman and Issacharoff test asking whether the congressional restriction makes realistic sense in the modern world would yield no coherent separation of powers answer if applied to the current Administration’s confrontation with Congress. It would undoubtedlyembolden the President to ignore Congress’s strictures. The President’s advisors would argue that the McCain Amendment’s ban on cruel and inhumane treatment, or FISA’s requirement of a warrant, does not make realistic sense in the context of the contemporary realities of the war on terror in which we face a shadowy, ruthless nonstate enemy that has no respect for laws or civilized conduct, a conclusion hotly disputed by those opposed to the President’s policies. Focusing the debate over whether Congress has the power to control the treatment of detainees on the President’s claim that the modern realities of warfare require a particular approach will merge the separation of powers inquiry of who has the power with the political determination of what the policy ought to be. Such an approach is likely to encourage the President to ignore and violate legislative wartime enactments whenever he or she believes that a statute does not make realistic sense—that is, when it conflicts with a policy the President embraces. 53
The contextual approach has a “zone of twilight” quality that Justice Jackson suggested in Youngstown. 54 Often constitutional norms matter less than political realities—wartime reality often favors a strong President who will overwhelm both Congress and the courts. While it is certainly correct— as Jackson noted—that neither the Court nor the Constitution will preserve separation of powers where Congress is too politically weak to assert its authority, a fluid contextual approach is an invitation to Presidents to pushbeyond the constitutional boundaries of their powers and ignore legislative enactments that seek to restrict their wartime authority.
Moreover, another substantial problem with a contextual approach in the war powers context is that the judiciary is unlikely to resolve the dispute. 55 The persistent refusal of the judiciary to adjudicate the constitutionality of the War Powers Resolution strongly suggests that courts will often refuse to intervene to resolve disputes between the President and Congress over the constitutionality of a statute that a President claims impermissibly interferes with her conduct of an ongoing war. 56 This result leaves the political branches to engage in an intractable dispute over the statute’s constitutionality that saps the nation’s energy, diverts focusfrom the political issues in dispute, and endangers the rule of law.
Additionally, in wartime it is often important for issues relating to the exercise of war powers to be resolved quickly. Prompt action is not usually the forte of the judiciary.
If, however, a constitutional consensus exists or could be consolidated that Congress has the authority to check the President’s conduct of warfare, that consensus might help embolden future Congresses to assert their power. Such a consensus might also help prevent the crisis, chaos, and stalematethat may result when the two branches assert competing constitutional positions and, as a practical matter, judicial review is unavailable to resolve the dispute.
Moreover, the adoption of a contextual, realist approach will undermine rather than aid the cooperation and compromise between the political branches that is so essential to success in wartime. In theory, an unclear, ambiguous division of power between the branches that leaves each branch uncertain of its legal authority could further compromise and cooperation. However, modern social science research suggests that the opposite occurs. 57 Each side in the dispute is likely to grasp onto aspects or factors within the ambiguous or complex reality to support its own self-serving position. This self-serving bias hardens each side’s position and allows the dispute to drag on, as has happened with the ongoing, unresolved dispute over the constitutionality of the War Powers Resolution. Pg. 407-409
The President will simply refuse to enforce the law — empirically proven when national security information is involved. This is true even if he signs the bill into law.
McGinnis 93 — Assistant Professor, Benjamin N. Cardozo School of Law, former Deputy Assistant Attorney General in the Office of Legal Counsel, Department of Justice, 1993 (“Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of Rational Choice In The Separation Of Powers,” Law and Contemporary Problems, Vol 56 No 4, Autumn, Available Online at Accessed 06-05-2015)
A. The Executive's Rebuff of An Adventitious Congressional Challenge to the Accommodation
One year into President Bush's term, Congress passed the Foreign Relations Authorization Act.74 The Act included a provision prohibiting the United States from spending any money authorized for international conferences on the U.S. delegation to the Conference on Security and Cooperation in Europe unless that delegation included representatives of the Commission on Security and Cooperation in Europe.75 This Commission was composed almost entirely of members appointed by the legislative branch.76
The reasons for Congress's decision to include this provision are obscure,' but a former member of the National Security Council staff recalls that the Counsel to the Foreign Relations Committee of the House of Representatives was particularly interested in these negotiations and wanted to participate in them.78 The inclusion of the provision was a sharp challenge to the President's asserted powers in foreign affairs for two reasons. First, presidents from both parties have asserted their authority to represent the United States in foreign affairs and thus control the identity of U.S. negotiators.79 Moreover, presidents have also consistently claimed the absolute right to control national security information and prevent its disclosure to Congress-a power that would obviously be impaired if a representative of the legislative branch were required on the negotiating team.'