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House committees take first step to reform NSA

3:28 pm in Uncategorized by Shahid Buttar

Last week, the House Judiciary and Intelligence committees approved a bill that would begin the process of restoring constitutional limits to dragnet government surveillance. While a praiseworthy step in the right direction, the progress to date remains both entirely too slow, and deferential to the intelligence agencies.

Congress should immediately pass the USA FREEDOM Act, and then get back to work to pass the further restrictions on NSA spying necessary to render it compliant with the First and Fourth amendments.

A limited reform package

Several observers have noted various ways in which the bill passed out of the committees last week leaves a great deal to be desired. The House committees watered down the bill’s provisions before approving it, undermining its ability to meaningfully restrain government spying.

For instance, the revised bill would fail to stop “back door searches,” through which the government targets Americans for surveillance while claiming to target foreigners in order to evade legal restrictions created in the 1970s after the agencies were caught spying on peaceful domestic social movements. In addition, the measure that would have created a public advocate to lend some legitimacy to the secret FISA court was scuttled. Instead, the court will retain discretion to appoint a panel of privacy advisors.

Finally, the revised bill fails to ensure transparency. Its public reporting requirements, watered down in committee, previously would have covered a number of domestic surveillance activities, including controversial National Security Letters long abused by the FBI.

This week, a coalition of 30 organizations wrote to Congress to address vulnerabilities where “several technical corrections and clarifications to the bill are required if Congress is to help ensure that the bill language is not misinterpreted and its stated goal of ending bulk collection is met.” Encyclopedic writer and analyst Marcy Wheeler questioned ”whether the bill will actually expose more kinds of US person records to the scrutiny of the NSA.” And Georgetown law professor David Cole said “the biggest mistake any of us could make would be to conclude that this bill solves the problem.”

Most fundamentally, Danielle Brian from the Program on Government Oversight said, “We cannot expect this bill to protect privacy and civil liberties while the public and Congress continue to be in the dark about the policies in practice.”

These concerns are all valid. Unfortunately, they’re just the beginning of the story.

Deferring to agencies despite a decade of secret crimes

Beyond particular concerns with changes wrought by Senate committees to the USA FREEDOM Act are a series of broader problems. Despite its welcome progress, the policy reform process reflects a troubling pattern of congressional deference to agencies and officials without any legitimate basis.

No senior intelligence agency official has confirmed even a single instance in which the NSA dragnet helped stop a potential terrorist attack. Multiple independent review panels have affirmatively reached the conclusion that NSA surveillance has never actually helped protect national security, despite the self-protecting statements of executive officials to the contrary.

Meanwhile, some of those very same officials have been caught red-handed lying to Congress, about matters as fundamental as whether the NSA is spying on millions of Americans. The Director of National Intelligence misled Congress, despite having advance written notice of that question, prompting several members of Congress to seek his appropriate prosecution for perjury.

Instead, the officials implicated in mass constitutional crimes all remain in place, and only after a year since learning the facts is Congress finally taking steps to restore the rule of law.

The proportionate response to the Snowden revelations would be to remove the entire senior leadership of the domestic intelligence agencies. The fact that the agencies’ leadership remains in place — despite the revelation of over a decade of unconstitutional surveillance that has poisoned our nation’s international relations and undermined our constitutional legacy, self-protecting lies to Congress, the misappropriation of public funds, and documented abuses of these programs facilitating potential domestic violence —renders suspect so-called policy “reforms” that ultimately defer to their interests.

Restoring a legitimate baseline for debate

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Beyond CIA & NSA spying: Corruption

2:54 pm in Uncategorized by Shahid Buttar

Even before open war erupted last week between the CIA and Senate Intelligence Committee Chair Dianne Feinstein (D-CA), embattled NSA officials had woven tangled skeins to downplay public crimes including lying to Congress.

Portrait of Dianne Feinstein

While the CIA’s torture prompted Feinstein to begin her committee’s investigation, it was the agency’s continuing cover up that prompted her to voice her concerns on the Senate floor in a speech described by her colleague Patrick Leahy (D-VT) as the most important he had ever witnessed in his 40 year career in the Senate.

Many observers have noted the double-standard apparent in Feinstein challenging the CIA while deferring to the NSA. Few have recognized that both the NSA’s pattern of spying and then lying about it, and the CIA’s trajectory of first committing torture crimes, then spying on Congress to cover it up and then lying about the spying when caught, can be described in a single word: corruption.

CIA: spying on Congress to cover up criminal human rights violations

Senator Feinstein knows as much about the CIA’s detention & torture programs under the Bush administration — which went well beyond the acts depicted in photographs from Abu Ghraib — as anyone outside the CIA. She described them as “un-American and brutal,” and her colleague Mark Udall (D-CO) called them both “brutal and ineffective.”

Beyond their brutality, ineffectiveness as an intelligence tool, and violation of fundamental American values and foreign policy interests, the programs were also international crimes at least partly responsible for the deaths of US military servicemembers. Releasing the Senate’s authoritative, 6,000 page, $40 million report to the public is long overdue—especially for an administration that falsely champions transparency while routinely undermining it.

While the CIA’s torture prompted Feinstein to begin her committee’s investigation, it was the agency’s continuing cover up that prompted her to voice her concerns on the Senate floor in a speech described by her colleague Patrick Leahy (D-VT) as the most important he had ever witnessed in his 40 year career in the Senate.

Feinstein revealed that CIA personnel removed files from the computers used by Senate staff to conduct their investigation, and that a CIA lawyer himself complicit in human rights abuses has tried to intimidate Senate investigators by outrageously seeking their prosecution—for obtaining an internal CIA document confirming facts the Agency is trying to continue covering up.

Ultimately, the CIA’s attempt to limit what material its congressional overseers can review smacks of self-interest, and reflects a evasion of accountability for severe institutional crimes. Brennan’s confirmation by the committee last spring entitled him to lead the CIA, not to place it above the law.

NSA: Lies to Congress and the public to cover up mass surveillance

Observers from across the political spectrum have agreed that Director of National Intelligence James Clapper either misled Congress, or lied outright when asked a straightforward question by Sen. Ron Wyden (D-OR) in a March 2013 Senate hearing.

With advance notice, Clapper was asked whether the NSA collects “any type of data at all on millions…of Americans.” He answered, “No sir. Not wittingly.” In June, the Snowden revelations shocked the globe and proved that his statement was simply not true, in addition to self-serving.

Many people have gone to prison for less significant lies than that.

Responding to Clapper’s admittedly false answer to Wyden, seven Republican members of Congress wrote to the Attorney General in December seeking a Justice Department investigation into potential perjury. They correctly noted that “Congressional oversight depends on truthful testimony,” which is why “witnesses cannot be allowed to lie to Congress.”

Members of Congress from both parties, and both chambers, are not alone in calling for accountability: Citizens for Responsibility and Ethics in Washington called for an investigation nearly a year ago, followed by the Bill of Rights Defense Committee and grassroots activists and organizations from across the country.

Obama: On the sidelines while his legacy is sealed

How else might we describe demonstrably false, self-serving statements by NSA officials paid by taxpayers to perform a public service, or CIA efforts to secretly hamstring investigations into their activities by the elected officials charged to oversee them? In any country that claims to be a democracy, the most elegant answer is a single word — corruption — with crucial connotations for a contemporary debate that remains limited, even after the Snowden revelations.

As members of Congress have challenged executive agencies covering up their crimes, President Obama has absurdly attempted to evade responsibility. This maneuver, like his initial decision to “look forward, not back” on torture, is what I described then as “an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.”

President Obama’s evasion is the antithesis of President Truman’s reminder that “the buck stops here,” and undermines his own prior commitment to releasing at least parts of the Senate’s torture report. Coming from an administration that has accepted poorly-deserved awards for transparency in ironically appropriate secret meetings, its tacit support for executive lawlessness is a spectacular — though entirely unsurprising — failure.

This post was originally published on March 17 at the People’s Blog for the Constitution.

Dueling judicial rulings on NSA Spying, and why they don’t matter

2:18 pm in Uncategorized by Shahid Buttar

Two federal judges reached opposite conclusions in separate cases challenging NSA spying. One was thoughtful; the other reflected much of what is wrong with our courts. Ultimately, however, neither will matter. The NSA’s dragnet continues unabated, and only Congress is poised to stop it.

NSA seal

Only Congress can stop the NSA.

Dueling judicial rulings on NSA Spying

Two weeks ago, US District Judge Richard Leon rightly described the NSA’s domestic spying operations as an “indiscriminate and arbitrary invasion.” He ruled in favor of a preliminary injunction against the programs, and stayed his ruling pending appeals that could go on for years.

Last Friday, Judge William Pauley opined that the NSA’s program does not violate the Fourth Amendment, prompting outrage among observers who understand either the NSA’s programs, or the role of courts, better than Judge Pauley. His decision reflects a disturbing judicial deference to executive spin, and undermines not only constitutional rights, but also judicial independence.

Why Judge Pauley’s ruling is silly: what congressional oversight?

We’ve known for some time of executive officials of lying to Congress about the NSA’s domestic dragnet.

Yet Judge Pauley’s deferential opinion states that the NSAs domestic spying programs have been subjected to rigorous oversight by all three branches of government. That is simply and demonstrably false: multiple members of Congress have publicly complained that they were kept in the dark, and even those few who were exposed to the programs through their roles on oversight committees have posed tough questions, only to hear lies in response.

Several members of Congress have gone so far as to seek the prosecution of the Director of National Intelligence for deliberately misleading Congress about the scope, extent, and scale of NSA spying —which, even after the litany of revelations this year, remain unknown to the public, press, and Congress.

Among the members of Congress seeking to curtail NSA powers are the original authors of the PATRIOT Act themselves, who claim that they never intended their signature legislative achievement to be abused as it has been over the past decade. Yet Judge Pauley relied on congressional approval of the programs.

Why Judge Pauley’s ruling is silly: effectiveness? really?

Judge Pauley also predicated his decision on the supposed effectiveness of the NSA’s programs, which the president’s own review board rejected a week before the judge released his poorly reasoned opinion. Even to whatever extent the programs were proven effective — which they have not been — that issue would be well outside the judicial scope of inquiry.

The Fourth Amendment requires searches and seizures to be justified with a specific warrant. In this context, the crucial jurisprudential question is whether or not NSA collection of telephony metadata counts as conducting a “search” or “seizure.”

Why Judge Pauley’s ruling is silly: what’s a search?

In 1979 — over 30 years ago, well before the rise of anything even remotely resembling the Internet — the Supreme Court held that capturing telephony metadata did not constitute a search when the government pursued a specific target, for whom authorities had a basis for individual suspicion, in the context of a particular investigation.

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Cracks widen in the armor of the surveillance state

10:56 am in Uncategorized by Shahid Buttar

This article was originally published at the People’s Blog for the Constitution, the blog of the Bill of Rights Defense Committee.

NSA seal

Is the NSA’s armor cracking?

Members of Congress sensitive to constitutional limits on executive power have introduced no fewer than a dozen bills to curtail NSA spying. Most of them would do nothing to address the most recent disclosures from journalist Glenn Greenwald. Until the full scope of NSA spying is revealed to the public, congressional remedies for constitutional violations will remain insufficient.

Unfortunately, while Snowden’s disclosures may enable further facts to finally emerge about NSA abuses, transparency is generally waning despite President Obama’s rhetorical commitment to it.

The latest revelations of NSA domestic spying include new information about the government’s ability to intercept social network communications, email metadata and content, and other online content–all without a judicial warrant.

Beyond the particular details about Xkeyscore, however, lies a more disturbing implication: neither the press, nor the public, nor even Congress have any idea of the full extent to which the NSA is spying on Americans.

And if the latest results from the war on whistleblowers is any indication, each of these sectors will remain in the dark going forward, executive abuses will continue to mount, and our system of constitutional checks & balances will creak as executive secrecy continues to impede review from either Congress or the courts.

Congress legislating in the dark…

The same day that the Guardian revealed the NSA’s's ability to casually intercept online communications even in social networking applications like Facebook, Senate intelligence committee chair Dianne Feinstein (D-CA) revealed how little she knows about the operations of an agency she is charged to oversee.

Despite being described by the Washington Post as “chief congressional defender of the surveillance program to skeptical colleagues and critics who say it’s Big Brother run amok,” she wrote an op-ed in the Post pledging to “work with…the Senate intelligence and judiciary committees to consider changes to the NSA call-records program in an effort to increase transparency and improve privacy protections.”

While her interests in transparency and privacy are laudable, they are a day late, a dollar short, and dramatically out of step with her overwhelmingly principled (either libertarian or progressive, but rarely moderate) constituents. Most striking, however, are the gaps pervading Feinstein’s analysis.

First, she insists that NSA intelligence collection is limited to meta-data, and emphasizes the controls supposedly limiting access to the vast mountains of data collected under a particular program, Section 215 of the PATRIOT Act, implicated by the first document revealed by Snowden.

But that’s only a single program. The PRISM program, which was also revealed weeks ago, explicitly captures content, as does the XKeyscore program revealed just yesterday. Feinstein downplays the extent of surveillance even while calling for more transparency. As the longtime chair of the relevant Senate oversight committee, she should have a better grip on the facts.

At one point, Sen. Feinstein absurdly claims to “know of no federal program for which audits, congressional oversight and scrutiny by the Justice Department, the intelligence community and the courts are stronger or more sustained.”

The Senator’s self-assurance aside, yesterday’s Guardian article revealed that even corporate contractors were allowed access to real-time social network monitoring with neither executive nor judicial oversight of any kind, not even by the rubberstamp FISA court. If this is the zenith of transparency across the federal government, it would be interesting to learn what the Senator thinks secrecy looks like.

Other members of the Senate intelligence committee, such as Sen. Ron Wyden (D-OR), have posed tough questions to executive officials, only to be stonewalled by the administration and blocked from reviewing key facts that would help reveal the extent of domestic NSA surveillance.

Last week, in the first vote on domestic surveillance powers since the Snowden leaks, the House came only six votes short of defunding the NSA’s domestic’s spying activities entirely.

The surveillance state staved off a public vote of no confidence with a margin of just over 1%. And that was before the latest revelations of online and email surveillance even beyond what Congress knew about at the time.

The PATRIOT Act has never been popular among Americans despite its recurring reauthorization from a compliant Congress. Over 400 cities and towns across the country enacted resolutions opposing PATRIOT powers, in addition to eight states, all representing a wide diversity of political cultures.

Would Congress have ever approved these powers had their more recent abuses been anticipated years ago? If recent comments from PATRIOT’s author offer any indication, the answer is no.

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FBI & NSA spying revealed: Uncle Sam is watching you, and both Congress and the courts are complicit

1:23 pm in Uncategorized by Shahid Buttar

The (UK) Guardian published a previously secret court order authorizing dragnet surveillance of millions of Americans without any pretense of justification, confirming concerns raised by civil libertarians (including me) for years.

Since first taking office in 2009, the Obama administration has repeatedly extended the USA PATRIOT Act, including the overbroad section 215 cited as the basis for the FBI surveillance approved by the secret order disclosed by the Guardian. In light of Congress’ recent decision to extend the law permitting even worse abuses by the NSA for another five years, and the Supreme Court’s outrageous decision in Clapper v. Amnesty Int’l turning a blind eye to dragnet domestic surveillance, the document is also a clarion call for both mass outrage and immediate congressional action for long overdue sunlight at the National Security Agency.

The document is disturbing because, in a single swoop, it authorizes not just the wiretapping of a single individual, or a single organization, but all of the customers of a single telecommunications company. The order reinforces its own secrecy, immune from public or congressional oversight, violating core tenets of both Due Process and the Fourth Amendment at once.

Surveillance run amok

The first thing to take away from this disclosure is this sheer scale and scope of FBI and NSA spying on Americans. Senators Ron Wyden (D-OR) and Rand Paul (R-KY), like the Bill of Rights Defense Committee and various allied organizations, have been raising alarm since even before the 2008 amendments to the Foreign Intelligence Surveillance Act (“FISA”).

Along with Senator Mark Udall (D-CO), Sen.  Wyden has suggested in his capacity as a member of the Senate Intelligence Committee that Americans would be outraged if we knew about secret government interpretations of the PATRIOT Act’s controversial Section 215 authority. The law is bad enough without being contorted to allow surveillance even beyond its meager limits, but that’s exactly what the document leaked to the Guardian demonstrates: a single wiretap order allowing the FBI to spy on millions of law-abiding Americans at once, without even a pretense of the individualized suspicion long required by the Constitution.

Wyden has also sought information about how many Americans have been impacted by NSA spying overseen by the same FISA court that approved the FBI surveillance revealed by the Guardian. The answers would be laughable if they weren’t so disturbing: the NSA claimed it couldn’t answer a quantitative question because it would somehow violate the privacy of individuals under surveillance, and also that figuring out the answer to Wyden’s inquiries would simply be impracticable.

The NSA’s spin moves before Sen. Wyden’s attempts at oversight insinuated what the Guardian’s disclosure confirms: that our government’s most secret agency is run amok, squandering billions of dollars while assaulting America from our own shores, using our own money.

While outrage is appropriately escalating at the scale of FBI and NSA abuses, three angles to this controversy have remained muted in most of today’s commentary.

Whistleblowers and transparency

First what little we do know about the NSA’s program is mostly gleaned from government whistleblowers, courageous individuals who have designed their careers to inform the public about secret abuses of our rights.

Many of them have faced prosecution, at unprecedented levels under the Obama administration, making even the Nixon administration look transparent by comparison. But the crackdown on whistleblowers is what enables abuses like the NSA’s to happen in the first place.

And keep your eyes open for whatever investigation the Justice Department will launch into this leak, compounding its assault on the Associated Press with a witch hunt to uncover the source of the leak to the Guardian.

Judicial independence

Second, the leaked court order reveals the illegitimacy of jurisprudence that sticks its head in the sand rather than confronting vital social issues.

The constitutional standing doctrine articulated by the Supreme Court in Clapper vs. Amnesty International eviscerates judicial review, and enshrined the principle that the executive branch can commit any abuse under the sun, yet evade judicial review, as long as it does so in secret. The decision creates perverse incentives and could serve as a cornerstone in the further entrenchment of executive power going forward.

Similarly, the sheer breadth of the leaked order authorizing FBI surveillance confirms the inadequacy of secret courts. Courts exist to enforce our rights in the face of government abuses. That’s one of the central geniuses of the founding fathers and the system of checks and balances they constructed.

But when the decisions are secret, they stop being judicial in character. Law is built on mutual references among courts. When the law can’t reference itself, it stops being law, and emerges as something very different: in this case, a rubber stamp allowing any manner of dragnet violations impacting law-abiding Americans and our fundamental rights.

We the People

It’s not enough to be outraged. Times like this require concerted, committed, and focused grassroots action. Raise your voice online to support the transpartisan “Ben Franklin” caucus discussed by Senators Wyden and Paul in DC this Monday night. And don’t stop there: reach out to the Bill of Rights Defense Committee for help building a diverse grassroots coalition to champion civil liberties where you live. Read the rest of this entry →

Immigration enforcement: a trojan horse?

8:32 am in Uncategorized by Shahid Buttar

Comprehensive immigration reform, along with the fiscal cliff and sequester, has recently dominated Washington. But observers have overlooked how calls for stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.

Conservative members of Congress have demanded tighter enforcement as a condition of considering meaningful reform of federal immigration policy. But enforcement-first immigration reform could wreak havoc with the fundamental liberties of citizens. If libertarians recognized how conservative policy proposals threaten their interests, the debate could shift dramatically.

What enhanced immigration enforcement could look like

Immigration enforcement takes primarily two forms: border security and interior enforcement. Each poses a threat to Americans who value their own freedom. The border security debate hides the most severe potential pitfalls, only because the privacy implications of interior enforcement have at least been discussed in public.

Many conservatives want to lock down our borders even more than our federal agencies already have. Yet American’s borders have never been more secure. In 2012, our government spent $18 billion on civil immigration enforcement, more than combined spending on all agencies that enforce criminal laws.

Proposals to further tighten border security have included increasing the deployment of domestic surveillance drones, expanding immigration checkpoints, building a fence, and adding more agents to the already bloated rosters of CBP and ICE.

Beyond border security is interior enforcement, which Bush and Obama both escalated, reflected in record numbers of deportations. Recent proposals emphasize technology: the controversial E-verify program to force employers to enforce federal immigration law, or similar programs like 287(g), Secure Communities, or the Next Generation Initiative, which co-opt local police and undermine public safety.

Confused premises

Whether at the border or within the US, the demand for tighter enforcement ignores reality: net migration across the southern border has already turned negative, driven by harsh profiling, alongside continuing stagnation in job growth, which has made immigration less economically attractive.

In other words, tighter border security and enhanced interior enforcement are unnecessary, at best. According to Marc Rosenblum from the Congressional Research Service, “additional investments at the border may be met with diminishing returns.”

Beyond diminishing returns, enhanced border security could prove nightmarish — not just for undocumented families, but also US citizens. Border security could diminish our own freedom to travel, while interior enforcement poses a covert threat to privacy.

Interior enforcement and the privacy of Americans

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Clapper v Amnesty: Courts and Congress v Our Constitution

9:30 am in Uncategorized by Shahid Buttar

This article was originally published on the People’s Blog for the Constitution.

US Supreme Court

Tuesday’s decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts’ constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.

Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.

Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.

Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.

A scandal in plain sight

The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting “a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,” including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.

In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.

Aside from generating an earthquake across Washington, the first results of the Times‘ expose included government threats to prosecute the journalists. Their only “crime” was exposing the public to an issue that should never have been secret in the first place.  While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.

In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency’s abuses to continue.

Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.

That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.

Closing the courthouse doors

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Uncle Sam is watching you

1:43 pm in Uncategorized by Shahid Buttar

"I've got my eye on you."

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 — 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.

This post originally appeared at the People’s Blog for the Constitution.