[Ppnews] A Blank Check for Domestic Spying

[Political Prisoner News]

http://www.counterpunch.org/cohn08102007.html

August 10, 2007

The New Wiretapping Law


A Blank Check for Domestic Spying

By MARJORIE COHN

Responding to fear-mongering by the Bush administration, the 
Democrat-led Congress has 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 
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.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and 
President of the National Lawyers Guild. Her new book, 
<http://www.amazon.com/exec/obidos/ASIN//0977825337/counterpunchmaga>Cowboy 
Republic: Six Ways the Bush Gang Has Defied the Law, has just been 
published by PoliPointPress. Her articles are archived at 
<http://www.marjoriecohn.com/>http://www.marjoriecohn.com/.




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