Monday, February 18, 2008

Backbone, at Last

It's about time. The U.S. Congress finally mustered the political courage to slow down the War on Terror' stampede on civil liberties.

By failing to re-authorize the so-called "Protect America Act," Congress reinstated a deeply flawed legal framework for warrantless surveillance. Nonetheless, that framework is preferable to that developed by the Bush administration under this act, which expired on Feb. 16, 2008.

In the Protect America Act, enacted Aug. 6, 2007, Congress authorized the Bush administration to continue two electronic surveillance initiatives it authorized under a 2001 executive order:

  • Warrantless wiretaps of conversations originating in, or terminating in, the United States, of individuals allegedly connected to terrorist groups; and
  • With the cooperation of U.S. telecommunications companies, warrantless mining of data streams to analyze transactional records of telephone and Internet traffic in search of patterns that might point to terrorist suspects.

Despite the "terrorist" appellation, these initiatives weren't limited to terrorist-related intelligence gathering. Any activity, terrorist-related or not, was fair game if deemed of interest to intelligence officials. Vice-President Dick Cheney, for instance, apparently used Bush's 2001 executive order to eavesdrop on members of his staff he suspected of talking to the press without advance authorization.

The Protect America Act bypassed a legal procedure set up 30 years ago to review applications for national security and intelligence-related electronic surveillance. Under the 1978 Foreign Intelligence Surveillance Act (FISA), a secret federal court must review any application for electronic surveillance that has a "substantial likelihood" of monitoring the communications of a U.S. resident.

But with the Protect America Act, the definition of "electronic surveillance" subject to FISA become much narrower, in effect, legalizing the Bush administration initiatives. What's more, the FISA court played a much smaller role. Rather than a court, the act gave the attorney general—a political appointee—the responsibility to authorize FISA-related surveillance requests. The court merely reviewed surveillance already under way.

The Protect America Act also directed telecommunications companies to assist the government in implementing the Bush surveillance initiatives. In addition, it protected those companies from private lawsuits for alleged violations of FISA. Dozens of such lawsuits have been filed.

Despite warnings from the Bush administration of possibly grave consequences if the Protect America Act ever expired, Congress thankfully set a time limit on this authority—February 16, 2008.

That supposedly would give legislators enough time to come up with a framework that would give back the FISA court some of its oversight. In exchange, Congress would presumably permanently legalize the Bush surveillance initiatives.

The Bush administration, however, wanted more. It also demanded that telecom companies receive retroactive legal immunity for their participation in illegal surveillance prior to enactment of the Protect America Act.

Last week, the Senate caved in to Bush, and included telecom immunity in its amendments to FISA. However, the House didn't go along. It adjourned for three weeks on Feb. 16 without renewing the Protect America Act. In the process, it delivered a rare respite to greater privacy intrusions in the never-ending War on Terror.

This certainly isn't the last word, but as it stands now, the FISA court must once again approve any new applications for electronic surveillance under the "substantial likelihood" standard.

Despite my grave misgivings about the entire procedure being shrouded in secrecy, and with near-total lack of accountability, this procedure is far preferable to placing the final decision in the hands of the attorney general. It's hard to forget that only a few months ago, the now thankfully departed Alberto Gonzales occupied this post.

What's more, even though Congress didn't cave in to the Bush administration, the world didn't end on Feb. 16. No mushroom clouds appeared over Washington, D.C., or New York City. Now that Congress has displayed a little backbone in defending civil liberties, it will hopefully have the courage to do so again.

Copyright © 2008 by Mark Nestmann

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