'Constitution, Smonstitution': Under the GOP's Counterfeit Conservatives, the Spy State and War State Must Prevail

By Mark Anderson
Stop the Presses News & Commentary

Counterfeit conservatism continues to reign on Capitol Hill. Major case in point: Both of the Republican-controlled legislative chambers decided to continue and apparently expand the post-9/11 surveillance state when they passed the FISA Amendments Reauthorization Act—and in so doing renewed the highly controversial Section 702 of the act.

In the Senate, Section 702 of the Foreign Surveillance Authorization Act (FISA) was reauthorized Jan. 18th The vote of 65-34. The House vote, 256-164, was on Jan. 11. President Trump, who had prevaricated on this issue, evidently will soon sign the act into law.

First, the essential details.

Section 702, originally enacted in 2008, authorized warrantless surveillance programs that permit the NSA “to collect texts and emails of foreigners abroad without an individualized warrant, even when they communicate with Americans in the U.S.,” explains The Hill.

Section 702 was set to expire as 2017 expired but was temporarily extended into mid-January. Proponents claimed letting it lapse would cast the nation into a virtual time machine, back to the pre-9/11 days when surveillance shortcomings helped enable the 9/11 attacks, in the opinion of Section 702 supporters.

But here’s where things get interesting.

Rep. Justin Amash (R-Mich.) is part of a small group of renegade House Republicans—others include Thomas Massie (Ky.) and Walter Jones (N.C.)—whose accurate worldview that real conservatism is generally anti-war acutely annoys the pro-war, pro-big business “establishment Republicans” who mislead, rather than lead, the party and its supporters, right down to those at the grassroots.

Amash saw his modest “702” proposed restrictions shot down, even though he had simply sought to limit how the surveillance information, once it’s gathered, can be used.

On the Democratic side, Sen. Martin Heinrich (N.M.) similarly argued, “The American people deserve better than warrantless wiretapping,” while urging senators to slow down and “consider the gravity of the issues at hand and to oppose reauthorization until we can have a real opportunity for debate and reform.”

Sen. Rand Paul (Ky.), one of the very few unconventional Republicans in that chamber, had expressed his intent to filibuster the Senate vote on Section 702 but was shut down by a 60-38 cloture vote Jan. 16 to end debate and prevent him from stalling the vote. The members of the GOP’s broad “war party” wing were not about to allow a “Mr. Smith goes to Washington-style filibuster" from Paul block or paralyze the sacred status quo.

It gets worse. An online account at libertarian Reason magazine’s website explains the cloture vote also “prevent[ed] any amendments prior to a formal [up-or-down] vote on the reauthorization act."

Sens. Paul and Ron Wyden (D-Ore.) led a bipartisan group of senators who had tried “to amend the bill so that it would require the FBI and National Security Agency (NSA) to get warrants in order to query or access any communications records (like emails or phone calls) from American citizens when [Americans] get drawn into international surveillance,” Reason also noted.

Furthermore, the act renews and expands “the snooping powers of Section 702 . . . for another six years,” Reason continued. “Though the law has the word ‘foreign’ in its name, the reality is that it has been used to collect and access communications from Americans, often without warrants and without our knowledge.”

So, the story behind the story is that a broad populist-style revival could take place on Capitol Hill, if only a reliance on principle, like Sen. Paul, Rep. Amash and others from both parties exhibited, could be allowed to grow more dramatically. An adherence to fundamental principles on issues that virtually everybody can agree on, like upholding the Fourth Amendment in this case, tends to create the right kind of unity, with which major, enduring policy shifts could happen.

Indeed, this kind of bipartisan cooperation—which also could focus on other essential issues such as turning away from the endless “war on terror”—might foil the pro-Zionist war-on-terror stratagem espoused by the neoconservatives (e.g. Sens. Lindsey Graham, John McCain) that long ago hijacked the genuine conservative movement and the Republican Party. (That coup also involved the early “Rockefeller Republicans” who, starting in the mid-20th Century, helped make the GOP the “war party,” thereby giving most Americans the impression that it’s impossible to be conservative without being pro-war and pro-surveillance, since spying goes hand-in-hand with war).

“This [reauthorization] bill doesn’t just renew Section 702 for six years,” Reason added. “It also codifies permission for the FBI to access and use data secretly collected from Americans for a host of domestic federal crimes that have nothing to do with protecting America from foreign threats.”

Furthermore, what are known as “about” searches—accessing communications that merely reference a foreign suspect, not just communications to and from that suspect—are revived under the 702 reauthorization. These types of searches were said to have been voluntarily ended by the NSA when it became clear that communications were being accessed outside of federal authority. Yet, this reauthorization restarts these probes unless Congress acts separately to end them.

Arguing in favor of renewing Section 702, an editorial by the Heritage Foundation’s Hans von Spakovsky published at the neoconservative “FoxNews.com” states: “It is a violation of the law [under Section 702] to collect information from targets inside the U.S.—whether they are Americans or foreigners—or to deliberately target the online communications of American citizens.”

But in a news release, Sen. Paul noted that due to a “backdoor loophole,” the bill “does nothing for the thousands of Americans whose private communications are searched without a warrant every year, including those who are not even the subject of an investigation.”

A Jan. 12 “dear colleague” letter from Sens. Paul, Wyden, Mike Lee (R-Utah), and Patrick Leahy (D-Vt.) adds: “The so-called ‘warrant requirement’ reform in the bill applies only to criminal suspects, and then only to the government’s access to their information at the final stage of an investigation, a situation that, according to the most recent annual data from the Director of National Intelligence, has occurred once. This means that the bill actually treats those suspected of a crime better than innocent Americans.”

Regrettably, however, both congressional chambers cast aside such concerns when they voted for this reauthorization—further deteriorating our Fourth Amendment protections against unreasonable search and seizure.