A Response to the passage of the 2008 amendments to the Foreign Intelligence Surveillance Act. (Fn.1)
The purpose of making amendments to the FISA was to fix an ambiguity that nobody disagrees needed to be fixed – whether or not the government need apply to the FISA court for foreign-to-foreign communications which happened to “route” through the US. Sadly it went far beyond that.
Eavesdropping or wiretapping is illegal. Under the federal system it carries a penalty of 5 years for each occurrence, but those who protect us have a way to wiretap legally. If there is a reason to believe that crimes are being planned or committed a court can grant a warrant.
Some would have you believe that these instances of wiretapping occur only when a suspected terrorist contacts a U.S. citizen or where there is at least some suspicion; but that is not the case at all. What if the government was quite literally sifting through everything – every telephone call, every text message, every voice mail and every email message in the nation and had been for years?
Mark Klein a 22 year long employee of AT&T testified before congress that agents of the NSA constructed top secret rooms in at least one major AT&T data center and quite literally copied everything passing through AT&T’s switches including to and from other companies to the government’s own supercomputers and have been for years; without a warrant, without any mechanism for separating domestic from overseas communications, and without separating suspect from citizen. (Fn2)
The government, while claiming to be intercepting only communications from suspected terrorists outside the US with people inside the US – was quite literally copying and analyzing every packet of data moving across the nation. When the telecoms cooperated, they and their massive legal departments were well aware that such a massive invasion of the privacy of millions of Americans was illegal, but they did it anyway. The new FISA says nothing to prohibit such dragnet practices; rather it permits the NSA to recruit telecoms to bug their customers phones and actually pays them for it.
[A]s a matter of principle . . . an American ought not to be targeted for surveillance unless there is probable cause to believe that he may violate the law. (Fn.3)
Lawsuits were filed by those impacted by the wiretapping, and at the trials we would have found out with some certainty the nature and extent of this dragnet surveillance and of course those guilty would have received justice.
The legislation passed and signed into law yesterday, (Fn.4) however, precludes this by giving the telecommunications companies the equivalent of retroactive immunity for their wrongdoing. Now, telecoms which have a letter from the government saying their actions were legal will be able to have their law suits dismissed, and apparently every involved telecommunications company received their letter before the law was signed.
So how does this impact you and I as citizens? Just yesterday Chris Hedges a prize winning reporter gave an example. He reports having been informed about a showdown between the US and Iranian Navy, something that could have the potential to escalate into a military conflict. Learning he had a contact on the ship that may have had pictures he tried to speak with them. But the first question asked was if Chris’s emails and phone calls were being monitored? What could he say? How could he know? The source refused to continue on the phone and now jittery refused an offer for Chris to fly out and meet in person – and now we will never know what happened or even if the report was true.
The bill signed yesterday does little to prevent reverse targeting, where a foreign subject is targeted but the real purpose is to intercept the communications of the US citizen they communicate with. The Senate Judiciary Committee bill required a warrant where a US citizen was a significant purpose of the surveillance, the current law does not.
Physicians, bankers, lawyers, lawyers, psychologists, even clergy all are bound by ethical duties to ensure the security of their communications with clients. Joy Olson of the Washington Office on Latin America cites problems – the office promotes dialogue and debate between Latin America and US Lawmakers, and their research is highly regarded. In their research on drug policy or gang violence, anonymity for informants is essential. The dragnet surveillance laws hamper their operations.
The original FISA law required the government to obtain a warrant from a US court whenever the government’s foreign surveillance activities impacted the rights of US Citizens or residents. The current bill allows surveillance to commence only after a FISA warrant or if the Attorney General and Director of National Intelligence claim they don’t have time. If information is obtained illegally, without court approval there is no provision that bars the information’s use.
What we need is a surveillance law which enables the government to conduct surveillance on people actually suspected of having done something wrong – this amendment permits the government unfettered access to the communications of millions of innocent people.
Electronic surveillance is a necessary tool in protecting our nation’s security, but it must be conducted constitutionally under the same rule of law that makes our country great. (Fn.5) We cannot continue to protect America at the expense of the very things that make us American, our privacy and our individual liberty.
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Fn.1 An excellent reference to the FISA issue with chronological links to the congressional record and litigation data can be found with the Federation of American Scientists at http://www.fas.org/irp/agency/doj/fisa/
Fn.2 Mark Klein interviewed on MSNBC http://youtube.com/watch?v=FaoYbm99lxM
Mark Klein on Washington Journal http://youtube.com/watch?v=rgSeoq3qN1s
Mark Klein’s story broken by ABC news in an exclusive http://youtube.com/watch?v=flaTjnexA6k
Fn.3 Senate Select Comm. To Study Governmental Operations with Respect to Intelligence Activities, Final Report, Book II, Intelligence activities and the rights of Americans, S. Rep. No 755, 94th Cong., 2d Sess. 325 (1976) [hereinafter Church Committee Report], quoted in Senate Comm. On the Judiciary, Foreign Intelligence Surveillance Act of 1977, S. Rep. No. 604, 95th Cong., 1st Sess. 84 (1977), reprinted in 1978 U.S.C.C.A.N. 3904, 3969 [hereinafter Senate FISA Report] (footnote omitted) (Minority Statement of Sen. James Abourzek).
Fn.4 This response was originally prepared at the request of a Democratic U.S. Congressional Candidate the day following passage of the amendments in 2008.
Fn.5 During 2007 the government made 2,371 applications to the FISA court for authority to conduct surveillance and physical search. 2,370 were approved. The 2007 Annual FISA Report to Congress can be found here: http://www.fas.org/irp/agency/doj/fisa/2007rept.pdf
© 2008 Daryl A. Rodrigues, M.A., J.D., M.B.A.
