Tuesday, 7 August 2007

Congress legalizes Bush's NSA wiretapping program

An inept Congress hands Bush his NSA wiretapping program legalized on a silver platter...
Quiz time! What is the one of the last things Congress did before taking a four-week August recess? Hand more power to the Bush administration and slash away at the US Constitution, of course! Another sting to civil liberties courtesy of the 'war on terrorism' and the American government. Enter the Protect America Act of 2007 (Senate vote info; House votes). All links in this post are, in my opinion, quite important to understanding this complex issue.

Secrecy, spying, and a false 'war'
Why did the United States Congress cave in to (NYT) President George Bush on the expanded wiretapping bill? If this were the Clinton years I might think secret deal or tradeoff (i.e. you pass my stuff and I don't veto yours). However, that system hasn't been as prolific in the relationship between Bush's White House and the majority-Democratic Congress.

One would think this new bill would finally resolve the legality of the Bush administration's controversial domestic surveillance program. How could any self-respecting legislator approve it — let alone a Democrat? The answer appears to be fear, on both sides, especially Democratic, of appearing soft on terrorism.

The Dems have already spent — for better or for worse — so much political energy on symbolic jabs at the Bush administration on the subject of Iraq. But when it comes to something real, impacting, non-symbolic, and relevant, but by no means routine, they give George W. Bush the kind of victory he hoped for. The NSA wiretapping program — revealed in 2005 by The New York Times — has been ruled illegal again and again. It sidesteps an already troubling statute: the Foreign Intelligence Surveillance Act of 1978, or FISA, whose secret judges grant secret warrants for secret searches or wiretaps, secretly. The Bush administration was forced to but the NSA program under the domain of FISA in January, resulting in a still-secret ruling that the program was illegal and placed restrictions, or something of the sort.

But the word 'illegal' is not in Bush's dictionary...
This bill, signed into law by Bush this weekend, validates the illegal wiretapping program that he has even admitted exists (in his own special way, plus it gave him a chance to attack the so-called liberal news media). It has a decent reach too. One of the administration's excuses for its until-recently-illegal eavesdropping program was that the current FISA court only deals with old means of communication, not modern ones like email and calls over fiber optic cable. Naturally, instead of requesting the then Republican-controlled Congress update the legislation (especially for the post-9/11 world, for which which the administration claims the illegal secret programs are essential), the White House decided to launch its own secret programs — legal or otherwise.

Extension of power
So what's wrong with this law just updating FISA to keep up with the times? Well, keeping up with technology is not the only changes this law puts into place...

Just as before, the FISA court only issues the search warrant after the search/wiretap is carried out — troubling, I know. But this legislation goes a bit further by removing more power from the courts, albeit secret ones that almost never take issue with clandestine spying on a domestic level. Now the searches can be carried out at the discretion of the attorney general or intelligence director.

That is all the more troubling considering the political yes-men Bush keeps in his cabinet and staff, and the fact that Alberto Gonzales is known for politically-motivated (in)justice. The horror! And as if the fact that Gonzales can now order secret searches, legally this time, isn't enough to make you a bit queasy for the disregard of the Fourth Amendment of the Constitution, keep in mind that under this new law the AG and head of intelligence have plenty of discretionary leeway when it comes to ordering secret surveillance. Plus, it's all secret; I'd expect nothing less transparent from this administration.

The sorta good news
A positive is that the AG will indeed have his power checked to a certain extent by internal audits, which have proved their worth in the past. That aspect of oversight is one the White House doesn't like.

One sliver of good news is that because of lawsuit threats that only increase under this legislation, telecommunications companies and ISPs are less likely to be bullied into invading their customers' privacy under pressure by the Bush administration. In fact, as I understand it this law removes the shield the White House has desperately tried to use to protect the telcos, which is bad news for the industry. Still, Gonzales has less leeway to invade our phone and internet records, though more to wiretap if the conversation might (emphasis on might) be with someone outside of the United States. Nonetheless, the telcos are as scared as ever of being sued for disclosing private details of their customers, as the Wall Street Journal reported on Monday, as did the NYT (linked above):

The law also gave the administration greater power to force telecommunications companies to cooperate with such spying operations. The companies can now be compelled to cooperate by orders from the attorney general and the director of national intelligence.
In fact, pressure from the telecommunications companies on the Bush administration has apparently played a major hidden role in the political battle over the surveillance issue over the past few months.

Worse than FISA
FISA was scary enough — but maybe understandable and, to an extent, justifiable — but putting the secret search rights into Bush's political cronies (yes, that's what Gonzales, among others, is) is going more than a tad overboard. Justifying it with national security is puzzling. The least Congress could do is get rid of Alberto Gonzales, which would take a bipartisan effort; many, many Republicans are on board with the idea and the Democrats have been jabbing at it for months. This new law will last six months or so, ending in early February 2008.

Just to make this more confusing, this all ties back to the legality of the 'war on terror':
With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).[2]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

So even under FISA the NSA program is questionable. No wait, the White House says it doesn't follow FISA rules because of the 'war on terror' powers given to the president by Congress. No worries: this new law legalizes all that existing wiretapping junk and then some.

There's balance, it's just all tilted towards the White House, (and the only checks are top secret)

In the war against terrorism there's no need to bother with those pesky courts of Constitutional practice anymore, says the White House. Congress seems to have fallen in line with that logic. And this isn't the first time. Remember the horrendous Military Commissions Act of 2006?

Isn't Congress supposed to oversee the operations of the executive? Has everyone forgotten the fundamental idea of checks and balances? With this law Congress has only given more power to the bloated, unpopular, unitary executive Bush administration that a majority of it claims to hate. It also cuts away further at the notion that Americans have rights guaranteed to them by their constitutional, and that civil liberties come with those rights. Freedom trumps security — or at least it should. But in a police state as well as in a certain way modern America (though nothing near a police state), fear rules all.

Soft on civil liberties
If the Democrats are so afraid of being painted as weak on national security, than actually being weak on civil liberties is not a very good fix. Are they more worried of what their opponents think of them and will paint them as than what they are actually doing? That's just sad.

When it comes to the reaction to national security — GWOT and its consequences — the Democrats have been disappointing. Does what your opponents think of you matter more than doing the right thing? Enjoy your recess, Congress. Hopefully you'll come back to Capitol Hill with more brains and balls.

Balkinization offers brilliant legal analysis and opinion on the 'proposed FISA "fix"', as they call it.

This post is over 1,500 words. Eventually I will probably cut it into shorter, more specific posts then expanding them. So don't be alarmed if you see a post with parts of this essay in the future.

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