Originally Published: 8/8/2007
THE NEW SURVEILLANCE LAW:
PROTECT AMERICA ACT of 2007
By The Issue Wonk
Last week Congress passed sweeping new spying powers as an up-date to the Foreign Intelligence Surveillance Act (FISA). Called the Protect America Act of 2007, it allows the government to eavesdrop on international telephone calls and e-mail messages of American citizens without warrants. “Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.”1 But it wasn’t clear until last week why it was pushing so urgently.
To give you a baseline for understanding, there are 3 types of communications: (1) Overseas foreign communications, which can be monitored without anyone overseeing them. An area of contention here is a communication between two people, not Americans, who have their communication routed through American telecommunication companies. This was an area that the Bush administration wanted changed and which Congress was willing to do. (2) Domestic communications, guarded by the Fourth Amendment, which cannot be monitored without approval from a court. (3) Communications between an American and a foreigner, which is the area of contention. If the American is the target of the investigation, a court order is necessary. But if the foreigner is the target, because the communication is with an American, a court order was also necessary.
Last Week, House Minority Leader John Boehner (R, OH) revealed on Fox News that, earlier this year, a FISA judge had issued a secret ruling concluding that “the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States.”1 (This is the first type of communication cited above.) Boehner said that the court order made “a key element of the Bush administration’s wiretapping efforts illegal.”1 In other words, Bush has been conducting illegal surveillance and wanted Congress to change the law to make what he was doing legal. This was the understanding that Congress had of the problem with the FISA law, a problem they were willing to fix.
Congress began working with the Director of National Intelligence (DNI), Mike McConnell, to craft legislation that would fix the holes created by the secret ruling. A compromise was reached that included “three points” that McConnell said the administration needed.2 But, the White House took advantage of the opening “to write its warrantless wiretapping program into law – or more precisely, to write it out from under any real legal restrictions.”3 Instead of accepting the legislation, “The DNI subsequently sent us a re-written piece of legislation that was about 80% different.”2 According to House Majority Leader Steny Hoyer (D, MD), “We had an agreement with DNI McConnell and then the White House quashed the agreement.”4 This was another attempt by Bush to “stampede Congress into a completely unnecessary expansion of his power to spy on Americans.”5
The original, compromise bill attempted to address the “anachronism”5 of the 1978 FISA law while imposing oversight on the White House. For example, it would have required audits by the Department of Justice’s (DOJ) Inspector General to check the Attorney General. It would also make the Attorney General “create guidelines to ensure that the government applies for a regular FISA warrant application when the government seeks to spy on a U.S. person.”6
This wasn’t good enough for Bush. He rejected the compromise bill and pushed hard for what he wanted. He complained publicly that Congress had not “drafted a bill I can sign. We’ve worked hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk. Time is short. I’m going to ask Congress to stay in session until they pass a bill that will give our intelligence community the tools they need to protect the United States.”7
He got what he wanted. The new legislation gives the Attorney General and the DNI the “power to approve the international surveillance, rather than the special intelligence court. The court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.”8 [Note: Apparently Congress was skeptical about giving embattled Attorney General Alberto Gonzales this kind of power, so they added the DNI. However, the current DNI, Mike McConnell, has experience “largely in military intelligence, not legal matters.”12]
With the new legislation, the Bush administration can
intercept any communications believed to be from outside the United States (including from Americans overseas) that involve “foreign intelligence” – not just terrorism. It will be able to monitor phone calls and e-mails of U.S. citizens or residents without warrants – unless the subject is the “primary target” of the surveillance. Instead of having the Foreign Intelligence Surveillance Act court ensure that surveillance is being done properly, with monitoring of Americans minimized, that job would be up to the attorney general and the director of national intelligence. The court’s role is reduced to that of a rubber stamp.3 [Emphasis added.]
In other words, oversight of the program will be done by the same people who supervise it. Even Tony Fratto, a White House spokesperson, said that “the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.”8 The new law “provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can listen to the private communications of American citizens.”8
Senate Intelligence Committee Chair Jay Rockefeller (D, WV) called giving Attorney General Alberto Gonzales expanded power “simply unacceptable,”10 especially considering the way he has misled Congress on disputes over the administration’s spying program. Yes, they caved in and passed the bill. Congress was “more concerned with protecting its political backside then with safeguarding the privacy of American citizens.”3
Telecommunications companies are not very happy about the legislation either. The new law gives the administration the power to force telecommunications companies to cooperate with the spying operations. Some had been cooperating but, because of their cooperation, they were being sued.8 Now they will be compelled to cooperate “by orders from the attorney general and the director of national intelligence.”8 Pressure from the telecommunications companies “has apparently played a major hidden role in the political battle over the surveillance issue over the past few months.”8 Apparently they would prefer having a court order, which would protect them from legal liability.
The only saving grace in this whole thing is that the law expires in six months, right in the middle of a presidential election year. Don’t think that this escaped anyone’s attention. However, there’s a provision that allows any surveillance in place at the time of the expiration to continue for a year, right through the election. Bush isn’t completely happy, though. He’s already pushing for more power. Congress approved this bill on August 4, 2007. The next day, in his Sunday statement, he said, “. . . our work is not done. This bill is a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law.” Next month he wants the telecommunications companies “immunized” from lawsuits, providing “liability protection.”11
This leads one to wonder if the new law wasn’t just to protect Bush from prosecution for illegal activities, but also to protect telecommunications companies. DNI McConnell said:
[T]hose who assist the Government in protecting us from harm must be protected from liability. This includes those who are alleged to have assisted the Government after September 11, 2001 and have helped keep the country safe.11
Or, as Yale law professor Jack Balkin said, “. . . [P]erhaps the Administration is suggesting that although such parties are alleged to have helped the country stay safe, there’s no evidence that their repeated violations of federal law actually did much to promote our security.”11
1 Leonnig, Carol D. & Nakashima, Ellen. Ruling Limited Spying Efforts. Washington Post, August 3, 2007.
2 Jordan, Lara Jakes. Bush, Democrats Deadlock on Surveillance. Associated Press, printed in Guardian Unlimited, August 4, 2007.
3 Editorial. Warrantless Surrender: Congress is Stampeded Into Another Compromise of Americans’ Rights. Washington Post, August 6, 2007.
4 Ackerman, Spencer. Bush Nixed Dem-DNI FISA Deal. TPMMuckraker, August 3, 2007.
5 Editorial. Stampeding Congress, Again. The New York Times, August 3, 2007.
6 See proposed legislation.
7 President Bush Meets With Counterterrorism Team. White House Press Conference, August 3, 2007.
8 Risen, James. Bush Signs Law to Widen Reach for Wiretapping. The New York Times, August 6, 2007.
9 Shrader, Katherine. Eavesdropping Reforms Empower Spy Chief. Associated Press, printed in Forbes, August 6, 2007.
10 Isikoff, Michael & Hosenball, Mark. Terror Watch: Behind the Surveillance Debate, Newsweek, August 1, 2007.
11 Roston, Michael. After Wiretapping Victory, Bush Says He Wants More Authority From Congress. The Raw Story, August 6, 2007.
© The Issue Wonk, 2007