by Prof. Marjorie Cohn

Global Research, August 10, 2007



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Responding to fear-mongering by the Bush administration, the Democrat-led Congress put its stamp of approval on the unconstitutional wiretapping of Americans.

George W. Bush has perfected the art of ramming ill-considered legislation through Congress by hyping emergencies that don't exist. He did it with the USA Patriot Act, the authorization for the Iraq war, the Military Commissions Act, and now the "Protect America Act of 2007" which amends the Foreign Intelligence Surveillance Act (FISA).

FISA was enacted in 1978 in reaction to excesses of Richard Nixon and the FBI, who covertly spied on critics of administration policies. FISA set up a conservative system with judges who meet in secret and issue nearly every wiretapping order the administration requests.

But that wasn't good enough for Bush. In 2001, he secretly established his "Terrorist Surveillance Program," with which the National Security Agency has illegally spied on Americans. Instead of holding hearings and holding the executive accountable for his law-breaking, Congress capitulated once again to the White House's strong-arm tactics. As Congress was about to adjourn for its summer recess, Bush officials threatened to label anyone who opposed their new legislation as soft on terror. True to form, Congress - including 16 Senate and 41 House Democrats - caved.

The new law takes the power to authorize electronic surveillance out of the hands of a judge and places it in the hands of the attorney general (AG) and the director of national intelligence (DNI). FISA had required the government to convince a judge there was probable cause to believe the target of the surveillance was a foreign power or the agent of a foreign power. The law didn't apply to wiretaps of foreign nationals abroad. Its restrictions were triggered only when the surveillance targeted a U.S. citizen or permanent resident or when the surveillance was obtained from a wiretap physically located in the United States . The attorney general was required to certify that the communications to be monitored would be exclusively between foreign powers and there was no substantial likelihood a U.S. person would be overheard.

Under the new law, the attorney general and the director of national intelligence can authorize "surveillance directed at a person reasonably believed to be located outside of the United States ." The surveillance could take place inside the U.S. , and there is no requirement of any connection with al-Qaeda, terrorism or criminal behavior. The requirement that the AG certify there is no substantial likelihood a U.S. person will be overheard has been eliminated.

By its terms, the new law will sunset in 180 days. But this is a specious limitation. The AG and DNI can authorize surveillance for up to one year. So just before the statute is set to expire around February 1, 2008, they could approve surveillance that will last until after Bush leaves office.

There is provision for judicial review of the procedures the AG and DNI establish to make sure they are reasonably designed to ensure communications of U.S. persons are not overheard. But that requirement is also specious. They must submit their procedures to the Foreign Intelligence Surveillance Court 120 days after the effective date of the act. The court doesn't have to respond to their submission until 180 days after the effective date of the act, and the standard of review is appallingly low. It's limited to whether the government's determination is "clearly erroneous." Even if the court were to find the proffer clearly erroneous, the AG and DNI have another 30 days to fix it. That takes the entire review process beyond the 6 month sunset period. Meanwhile, the surveillance can continue.

The Supreme Court held in the 1967 case of Katz v. United States that government wiretapping must be supported by a search warrant based on probable cause and issued by a judge. In 1972, the Court, in U.S. v. U.S. District Court (Keith), struck down warrantless domestic surveillance. The Court has recognized the "special needs" exception to the warrant requirement. The special need must be narrowly tailored to the problem. However, the new law is much too broad to come under this exception. Congress eliminated any need that the person surveilled be a foreign power or an agent of a foreign power. The government need only show it is seeking "foreign intelligence information." There is no requirement of any connection with terrorism. The special needs exception also requires an absence of discretion in the implementing authority. There is unlimited discretion now as long as the target is reasonably believed to be outside the United States .

The AG is required under the new law to report to Congress semi-annually, but only on incidents of non-compliance. Can we really trust Alberto Gonzales to be forthcoming about compliance with this law? Senator Christopher Dodd told Glenn Greenwald at the YearlyKos convention last week that neither he nor the other senators have any idea of how the Bush administration has been using its secret program to spy on Americans.

Finally, the new law requires telephone companies to collect data and turn it over to the federal government. It also grants immunity against lawsuits to these companies, many of which are currently defendants in civil cases.

Indeed, the mad rush to push this legislation through last week was likely a preemptive strike by Bush to head off adverse rulings in lawsuits challenging the legality of his Terrorist Surveillance Program. On August 9, a federal district court in San Francisco will hear oral arguments by lawyers from the Center for Constitutional Rights and the National Lawyers Guild in CCR v. Bush. And on August 15, Guild lawyers and others will argue Al-Haramain v. Bush in the 9th U.S. Circuit Court of Appeals.

In six months, when the "Protect America Act of 2007" is set to expire, there will be even more political pressure on Congress to appear tough on terror in the run-up to the 2008 presidential election. We cannot expect a Congress that so easily caved in to the fears hyped by the Bush administration to stand firm in support of the Constitution.

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"And I looked, and behold a pale horse: and his name that sat on him was Death, and Hell followed with him."
- Revelations 6:8

FISA has been long over-due for a rehaul. The law was passed in 1978, for heaven's sakes!! Before computers were in every home; before the internet; before disposable cellphones and the like. The technology has long past the 1978 FISA legislation. And it's about time the Congress FINALLY passed it. It's just too bad they made it a temporary 6 month thing. That just won't cut it. It will have to be made permanent---with perhaps even more changes.

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"If the President simply adds a couple of Republican solutions to a trillion dollar health care package that the American people don't support, it isn't bi-partisan. It's political cover," Rep Eric Cantor (R-Va.)

"The Protect America Act Modernizes The Foreign Intelligence Surveillance Act (FISA) To Give Intelligence Professionals The Tools They Urgently Need To Gather Information About Our Enemies, While Protecting The Civil Liberties Of Americans. The Act, passed with bipartisan support in the House and the Senate, restores FISA to its original focus on protecting the rights of Americans, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas.

Changes In Technology Since 1978 Had The Effect Of Expanding The Scope Of FISA's Coverage To Include Intelligence Collection Efforts That Congress Excluded From The Law's Requirements. This unintended expansion of FISA's scope meant the government, in a significant number of cases, needed to obtain a court order to collect foreign intelligence information against a target located overseas. This created an unnecessary obstacle to our Intelligence Community's ability to gain real-time information about the intent of our enemies overseas and diverted scarce resources that would be better spent safeguarding the civil liberties of people in the United States, not foreign terrorists who wish to do us harm.

The Government Should Not Have To Obtain A Court Order To Conduct Surveillance On Foreign Intelligence Targets Located In Foreign Countries. This was not Congress' intent when it enacted FISA. As the Director of National Intelligence stated, continuing to operate under this outdated law meant our intelligence professionals were "missing a significant amount of foreign intelligence that we should be collecting to protect our country."
The Protect America Act Modernizes FISA In Four Important Ways

The Act Permits Our Intelligence Professionals To More Effectively Collect Foreign Intelligence Information On Targets In Foreign Lands Without First Receiving Court Approval. The Act clarifies that the definition of electronic surveillance in FISA shall not be construed to encompass surveillance directed at a person reasonably believed to be located outside the U.S. This clarification restores FISA to its original intent and means intelligence professionals will not have to go to court in order to collect foreign intelligence on an overseas target who may be planning to attack the U.S.

The Act Provides A Role For The FISA Court In Reviewing The Procedures The Intelligence Community Uses To Ensure That Surveillance Efforts Target Persons Located Overseas. The Attorney General is required to submit to the FISA court the procedures by which intelligence professionals will determine that the authorized acquisitions of foreign intelligence do not constitute electronic surveillance that is, the procedures by which the government determines that the acquisitions are directed at persons reasonably believed to be outside the United States.

The Act Provides For The FISA Court To Direct Third Parties To Assist The Intelligence Community In Its Collection Efforts. The Act permits the Director of National Intelligence and the Attorney General to direct third parties to provide the information, facilities, and assistance necessary to conduct surveillance of foreign intelligence targets located overseas.
The Act Protects Third Parties From Private Lawsuits Arising From Assistance They Provide The Government. No cause of action may be brought in any court against any person for complying with a directive to provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition of foreign intelligence information.

Our Work Is Not Done — This Act Is A Temporary, Narrowly Focused Statute To Deal With The Most Immediate Needs Of The Intelligence Community To Protect The Country. When Congress returns in September, the Intelligence Committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director of National Intelligence Mike McConnell, including the important issues of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001. "

http://www.whitehouse.gov/news/relea...0070806-5.html

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"If the President simply adds a couple of Republican solutions to a trillion dollar health care package that the American people don't support, it isn't bi-partisan. It's political cover," Rep Eric Cantor (R-Va.)

Here it is....in all it's glory:

http://cryptome.org/s1927.htm

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"If the President simply adds a couple of Republican solutions to a trillion dollar health care package that the American people don't support, it isn't bi-partisan. It's political cover," Rep Eric Cantor (R-Va.)

You do realize what this means, right?

I mean, these are not just "phone calls" we're talking about.

These days, "phone calls" come in many forms - like, there's fiber optics, cell phones, voice over IP, and etc etc - and "some" of those things are treated differently under the law than actual "old-style" phone calls made over land lines.

The big joke in the electronics industry, is that it's still "technically illegal" to use any kind of encryption code that the FBI can't break. I mean, it kinda makes me wonder how these guys keep coming up with newer better codes.... 'cause they'd have to break the law to do that, wouldn't they?

Bottom line is this: FISA desperately needed up-dating to accomodate these new technologies. It was written back when none of these things existed. It's hard to believe that some cannot understand the necessity.

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"If the President simply adds a couple of Republican solutions to a trillion dollar health care package that the American people don't support, it isn't bi-partisan. It's political cover," Rep Eric Cantor (R-Va.)

The necessity of warrantless eavesdropping?

Let's inject a little reality into this picture, 'kay?

The "technological capability" for eavesdropping has been available since day one, there's nothing new about it. Some of it is even built right into the gigantic telephone switches.

The question is, and always has been, whether the government should be allowed to use that capability.

But, there's yet another level of reality. 'Cause you and I, with very primitive computer equipment, can tap into peoples' conversations on the internet, and if those discussions happen to use voiceOverIP, well..... I mean, heck, we can even drive around the city with a laptop, and tap into peoples' wireless networks - and the stuff you can find out there, totally unsecured, is amazing - it's like, hospitals, and insurance companies (I mean, places with "confidential personal records", that kind of thing).

So, if the government is denied that capability, then basically it means they have a "leg down" on everyone else, and that's probably not acceptable either. But the idea of "warrantless" in "warrantless wiretaps", is probably the other boundary, on the other side of the spectrum of what is "acceptable" in this situation. Because I don't know about you, but I'm not going to let a few terrorist zealots alter the relationship between me and my government - if that relationship changes, it won't be because of anything I'VE agreed to.

It seems to me, that this whole issue is really a moot point - I mean, that is to say, in relation to the more global spectrum of issues in the space that is "electronic privacy". The reality in this case, is that the government is probably going to do it anyway, whether or not it's legal. But the real issues, are around what happens "down the line", like when you try to prosecute the people you've arrested this way. 'Cause those prosecutions would never fly in any court of law in the United States, and that's exactly why they don't want to try these people, they'd prefer to designate 'em as "non-lawful combatants" so they can't be held responsible for the "methods" by which they were taken into custody....

What would be fair, it seems to me, is that the government should be held to the same standard now, that it's always been held to. In order to invade someone's privacy, you need "cause" - and you need a warrant. There has to be oversight, that's the way our system is set up - the fundamental assumption being that no one person (any one person) is trustworthy enough to be given absolute power, now or ever.

No one has yet convinced me that this "modification" (or "updating" as you say) of the FISA law is ncessary. All I hear is a bunch of right wing fanatics screaming that it is, but no one's telling me WHY. 'Cause like I said, it's not like they "can't" (technologically) do it, so it seems to me that they're just scared of having to be held responsible for their methods.

So, before you jump on my case for "not understanding", why don't you take a moment out and explain it to me, in real simple English so a dummy like me can comprehend it..... WHY is warrantless wiretapping necessary?

Chertoff can explain it better than me:

" I asked him (Chertoff) why the Bush administration can't comply with the 1978 Foreign Intelligence Surveillance Act (FISA), which allows the government to conduct "emergency" wiretaps for 72 hours.

"It's hard to talk about classified stuff," he said, "but suffice it to say that if you have a large volume of data, a large number of (phone) numbers you're intercepting, the typical model for any kind of warrant requires you to establish probable cause (that one party is a foreign agent) on an individual number."

FISA warrant applications are inches thick, he said, and "if you're trying to sift through an enormous amount of data very quickly, I think it would be impractical." He said that getting an ordinary FISA warrant is "a voluminous, time-consuming process" and "if you're culling through literally thousands of phone numbers ... you could wind up with a huge problem managing the amount of paper you'd have to generate."

What I understood Chertoff to be saying is that when data-mining produces evidence of a terrorist contact, the government will then seek a FISA warrant to actually tap the person's phones or "undertake other kinds of activity in order to disrupt something."

As legal authority for the program, Chertoff cited a 2002 decision of the FISA Court of Review, which is one level down from the U.S. Supreme Court, holding that a president has "inherent (constitutional) authority to conduct warrantless searches to obtain foreign intelligence information."

http://www.reporter-times.com/?modul...32&format=html

So, they DO seek the warrant, but they have to get the information first in order to proceed to that point.

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"If the President simply adds a couple of Republican solutions to a trillion dollar health care package that the American people don't support, it isn't bi-partisan. It's political cover," Rep Eric Cantor (R-Va.)

Responding to fear mongering? The Dems in Congress could have squashed the bill if they sincerely believed it was the right thing to do.

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http://www.freedomswatch.org/Home/tabid/36/Default.aspx

When religion ruled the world...wasn't that the Dark Ages?

Okay, I get that part. "Voluminous and time-consuming". Okay.... so, like, there's no way to streamline that process? I mean, last I heard, a FISA judge was available 24/7 for the express purpose of issuing these warrants, and I forget exactly now what led me to this conclusion, but I was left with the impression that in an emergency the whole thing might take a half hour "at most".

Well - here's kinda how I "start" when I look at this question - first of all, anyone who makes a terrorist threat against the government of the United States, is fair game - it's the President's job to find and eliminate these people, and that's all good. "HOW" he does that, is really the question, right? So, let's say you're the boss, and you have this super-duper technology at your disposition, and you're trying to protect your people and your nation - do you USE the technology? Of course you do. Of COURSE you do!

But you don't tell people about it. You don't get in front of the American People and beg their indulgence while you violate the Constitution and break the law. That, is just stupidity, and that's perfectly consistent where Bush is concerned. That's why we have unnameable three-letter agencies with black budgets and so on -

I mean, imagine what would happen if these things were to happen in a REAL time of war, I mean like WW-2 or something. Are you telling me that the President and all his minions are so freakin' incompetent that they can't keep a secret? Like, it's somehow "impossible" to execute a covert operation without leaks? Come on.... sometimes we find out about these things on peoples' deathbeds, like Deep Throat and Irish Tony and all that...

Really - think about it. To me, there's only one answer here. They're trying to blame the "liberals" for the leaks, when the truth is that I see incompetence in big red letters written all over the front door of the White House.

Mr. President - Dude - if you're going to tap my phone, don't be a dumb freakin' moron and tell me about it. Know what I'm sayin'? I mean, "I" would probably find out about it soon enough, but "most people" aren't capable that way.

See what I mean? The political side of this question has nothing to do with "technological capability" - they're asking the American People to bend over while they screw us just an eighth of an inch deeper, and on that, from a political standpoint, there can be only one answer - a resounding NO.

These Bush people are the worst form of statists - I mean, it's all too clear what they want, right?