I Know What You Did Last Summer

Fourth Amendment Shredded

JONATHAN ALTER / Newsweek 27aug2007

I hate to sound melodramatic about it, but while everyone was at the beach or "The Simpsons Movie" on the first weekend in August, the U.S. government shredded the Fourth Amendment to the Constitution, the one requiring court-approved "probable cause" before Americans can be searched or spied upon. This is not the feverish imagination of left-wing bloggers and the ACLU. It's the plain truth of where we've come as a country, at the behest of a president who has betrayed his oath to defend the Constitution and with the acquiescence of Democratic congressional leaders who know better. Historians will likely see this episode as a classic case of fear—both physical and political—trumping principle amid the ancient tension between personal freedom and national security.

Congress had good reason to amend the 1978 Foreign Intelligence Surveillance Act (FISA). After the shift from satellites to fiber-optic cable for most international phone calls, the statute was as out of date as disco. With Congress, the courts and President Bush squabbling over his illegal wiretapping program, the government was actually conducting less surveillance of foreign nationals than before 9/11, which was crazy. We had to do more listening in, especially with scary new intelligence "chatter" suggesting an unspecified attack on the U.S. Capitol this summer. Congressional sources who attended the late-July classified intel briefings, but won't talk about them for the record, say these threats didn't sound like spin. After all, we're not talking here about trumped-up Iraqi WMD, but Al Qaeda terrorists who have already tried to kill us.

So members of Congress are legitimately afraid that they and their families will get blown up this summer. Fair enough. But then they lost their heads and sold out the Constitution to cover their political rears while keeping the rest of us mostly in the dark. The reason we don't know more about what happened is that the United States has moved sharply in recent years from legitimate secrecy—regarding sources and methods—to the bogus kind the late senator Daniel Patrick Moynihan and others warned will wreck democracies. For instance, the abstract legal arguments used by the shadowy FISA court to strike down Bush's surveillance program are secret. Why? Because they might be politically embarrassing.

Here's what we do know. We know that the Democratic leadership rightly conceded to Adm. Michael McConnell, the once widely respected director of National Intelligence, to allow eavesdropping on foreigner-to-foreigner communications routed through American phone companies (no biggie; we've always spied on foreigners). We know that the Democrats thought they had a deal until McConnell, who is supposed to be nonpartisan, went back to the White House and got fresh marching orders to squelch reasonable judicial oversight by the FISA court. And we know that the administration's new position was that the attorney general (the disgraced Alberto Gonzales) should have the sole authority to spy without a warrant on any American talking to a foreigner, even if it's you and the guy from Mumbai fixing your printer.

Then the Democrats said: "Wait a minute! That's unconstitutional!" Right? Actually, no, they didn't. Even liberals like Rep. John Conyers, chairman of the House Judiciary Committee, argued in two heated, closed-door meetings on Aug. 3 that the Democrats might as well cave. Otherwise, they would be pounded during the August recess for ignoring national security and destroyed as a party if the country were actually attacked. Even though the leadership and 82 percent of House Democrats voted against the bill, they did not block it, delay the recess and hold the Congress in session. The private excuse was that the liberal base wouldn't be satisfied no matter what they did, and that Senate Majority Leader Harry Reid couldn't make the more conservative Senate go along anyway. Apparently, there's always an excuse for leaving for vacation on time.

Afterward, House Speaker Nancy Pelosi said publicly that many provisions were "unacceptable" and the House would revisit the newly signed legislation "as soon as possible." Democrats obtained a sunset clause that requires the whole thing to be reauthorized in six months. But real damage has been done. At a minimum, we have suspended the Fourth Amendment for the time being. Doing so might conceivably be excusable if we're likely to catch terrorists this way. But with a tiny number of Arabic speakers asked to translate thousands of transcripts, there's little chance we'll find a needle in the haystack. If our snooping technology were so terrific at nabbing bad guys, we'd brag to Al Qaeda about it as a form of deterrence instead of keeping it secret. "Secrecy is for losers," Moynihan liked to say, in a time before we began losing freedom and security simultaneously.

source: 29aug2007

House Approves Wiretap Measure

White House Bill Boosts Warrantless Surveillance

ELLEN NAKASHIMA & JOBY WARRICK / Washington Post 5aug2007

The Democratic-controlled House last night approved and sent to President Bush for his signature legislation written by his intelligence advisers to enhance their ability to intercept the electronic communications of foreigners without a court order.

The 227 to 183 House vote capped a high-pressure campaign by the White House to change the nation's wiretap law, in which the administration capitalized on Democrats' fears of being branded weak on terrorism and on a general congressional desire to act on the measure before an August recess.

The Senate had passed the legislation Friday night after House Democrats failed to win enough votes to pass a narrower revision of a statute known as the Foreign Intelligence Surveillance Act. The original statute was enacted after the revelation of CIA abuses in the 1970s, and it required judicial oversight for most federal wiretapping conducted in the United States.

Privacy and civil liberties advocates, and many Democratic lawmakers, complained that the Bush administration's revisions of the law could breach constitutional protections against government intrusion. But the administration, aided by Republican congressional leaders, suggested that a failure to approve what intelligence officials sought could expose the country to a greater risk of terrorist attacks.

Democrats facing reelection next year in conservative districts helped propel the bill to a quick approval. Adding to the pressures they felt were recent intelligence reports about threatening new al-Qaeda activity in Pakistan and the disclosure by House Minority Leader John A. Boehner (R-Ohio) of a secret court ruling earlier this year that complicated the wiretapping of purely foreign communications that happen to pass through a communications node on U.S. soil.

The bill would give the National Security Agency the right to collect such communications in the future without a warrant. But it goes further than that: It also would allow the interception and recording of electronic communications involving, at least in part, people "reasonably believed to be outside the United States" without a court's order or oversight.

White House spokesman Tony Fratto emphasized that the bill is not meant to increase eavesdropping on Americans or "to affect in any way the legitimate privacy rights" of U.S. citizens. Data related to Americans in communications with foreigners who are the targets of a U.S. terrorism investigation could be monitored only if intelligence officials have a reasonable expectation of learning information relevant to that probe, a senior U.S. official said.

"There are a lot of people who felt we had to pass something," said one angry Democratic lawmaker who spoke on the condition of anonymity, citing the sensitivity of caucus discussions. "It was tantamount to being railroaded."

In a sole substantial concession to Democrats, the administration agreed to a provision allowing the legislation to be reconsidered in six months.

Some House Democrats were still upset by what they saw as a deliberate scuttling by the White House of negotiations on a compromise bill. On Thursday, Democratic leaders reached what they believed was a deal with the government's chief intelligence official, Director of National Intelligence Mike McConnell, only to be presented with a new list of conditions at the last minute. The White House and McConnell have denied that a deal had been reached.

"I think the White House didn't want to take 'yes' for an answer from the Democrats," said Rep. Jan Schakowsky (D-Ill.), an intelligence committee member.

The administration said that its bill is aimed at bringing the Foreign Intelligence Surveillance Act of 1978 into step with advances in technology, primarily by restoring the government's power to gather without a warrant foreign intelligence on targets located overseas.

Because the law has not kept up with advances in telecommunications, McConnell said in congressional testimony, the government "is significantly burdened in capturing overseas communications of foreign terrorists planning to conduct attacks inside the United States."

Civil liberties and privacy advocates and a majority of Democrats said the bill could allow the monitoring of virtually any calls, e-mails or other communications going overseas that originate in the United States, without a court order, if the government deems the recipient to be the target of a U.S. probe.

Last night, several Democrats said the bill would undermine the Fourth Amendment. Rep. Jerrold Nadler (D-N.Y.) said lawmakers were being "stampeded by fearmongering and deception" into voting for the bill. Rep. Jane Harman (D-Calif.) warned that the bill would lead to "potential unprecedented abuse of innocent Americans' privacy."

Republicans and administration officials argued to the contrary that the distinctions in the present law -- between calls inside and outside the country -- are outmoded in an age of cellphones that work on multiple continents. What intelligence officials seek, a White House official said in an interview yesterday, is the ability to "surveil a target wherever the call [or other communication involving that target] comes from," and that the new legislation would provide that.

In place of a court's approval -- which intelligence officials worried might come too slowly -- the NSA would institute a system of internal bureaucratic controls.

A senior intelligence official said that in cases in which an overseas target is communicating with people in the United States not relevant to an investigation, their names are "minimized," or stripped from the transcript, before it is disseminated. "You won't see data mining in there," the official said. "You won't see vast drift net surveillance of Americans. . . . What we do not do is target people in the United States without a warrant."

Rep. Silvestre Reyes (D-Tex.), chairman of the House intelligence committee, said that the Democrats would introduce legislation on surveillance in the fall and would conduct oversight of the administration's surveillance program.

A narrower Democratic alternative, which Democrats said they crafted partly in response to McConnell's concerns, won majority support but nonetheless failed because it did not collect the necessary two-thirds vote Friday night in the House. It failed after an emotional debate in which Republicans charged Democrats with being soft on terrorism and House Speaker Nancy Pelosi (D-Calif.) accused Republicans of not caring "about the truth."

Under the administration's version of the bill, the director of national intelligence and the attorney general can authorize the surveillance of all communications involving foreign targets. Oversight by the Foreign Intelligence Surveillance Court, composed of federal judges whose deliberations are secret, would be limited to examining whether the government's guidelines for targeting overseas suspects are appropriate. The court would not authorize the surveillance.

The bill's six-month sunset clause did not assuage some critics.

"I'm not comfortable suspending the constitution even temporarily," said Rep. Rush D. Holt (D-N.J.), a member of the House intelligence committee. "The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security."

source: 29aug2007