New Rules

Ken AshfordWiretapping & SurveillanceLeave a Comment

Firedoglake sums up the new wiretapping law that the Democratic-controlled Congress just approved (and Bush signed):

Under just some of the revisions, NSA can spy on any call you make to or receive from another country (or a place the AG reasonable believes is to/from another country), without a warrant, as long as Alberto Gonzales and the Director NSA claim they reasonably believe it involves “foreign intelligence.” There doesn’t have to be any connection with a foreign power with whom we are war or terrorist group. Just you and your foreign friends is enough. The FISA court may examine the overall process in some undefined, rubberstamp way, but it cannot consider the reasonableness of your individual case. Any pretense that the 4th Amendment applies is gone.

James Risen writes more details in the New York Times today:

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

….For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.’s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

"It’s foreign, that’s the point," Mr. Fratto said. "What you want to make sure is that you are getting the foreign target."

….The new law gives the attorney general and the director of national intelligence 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.

This is a horrible horrible law and a huge blow to the civil liberties of every American.  As Drum notes:

So that’s that. The government is now legally allowed to monitor all your calls overseas with only the most minimal oversight. But don’t worry. I’m sure they’ll never misuse this power. They never have before, have they?

Publius is concerned that there was no public debate about whether the government should be able to freely listen in on all our foreign communications.

It’s pretty clear that the administration wants the authority to conduct electronic surveillance basically anywhere and anytime for anti-terrorism purposes. Perhaps I’m naïve, but I think they’re motivated by good intentions. R egardless though, if you want this type of power, come out and say it. Let’s have a debate on that specific question.

Maybe privacy is quaint in the age of digitally-enabled terror. Maybe we need to rely on the political process (i.e., elections) for protection. I disagree with both views, but we should at least have that debate. Say what you will about John Yoo, he at least doesn’t pull punches. He wants a vast expansion of executive power and doesn’t try to dress it up in different clothes.

But "different clothes" is exactly what we got with the FISA debate. We got the White House spokesman pretending to affirm strong privacy and civil rights protections. We got a bunch of meaningless oversight procedures that do nothing but give the appearance of oversight. That’s not how democracy is supposed to work. More to the point, democracy can’t work when the terms of important debates are cloaked in dishonesty and Kabuki.

Professor Lederman has a nice wrap-up of posts and links.