Tuesday, February 12, 2008

The “Protect America Act” and FISA

The Foreign Intelligence Surveillance Act of 1978 defines how the US government carries out electronic surveillance for gathering foreign intelligence information, which is further defined (in 50 USC §1801(e)) as “information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against (a) actual or potential attack or other grave hostile acts of a foreign power or an agent [thereof]; (b) sabotage or international terrorism by a foreign power or an agent [thereof]; or (c) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent [thereof]” or “information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to (a) the national defense or the security of the United States; or (b) the conduct of the foreign affairs of the United States.”

The problem with this, of course, is that the definition could be stretched to justify any sort of surveillance anywhere, which was why FISA put some rational limits on the exercise of electronic surveillance. These limits weren’t particularly burdensome. Warrants could be obtained from the Foreign Intelligence Surveillance Court (FISC) anytime up to 72 hours after surveillance began. (This makes sense—if an agency stumbles on a sabotage plot, the law enables the government to start observing right away, with the presumption that the government will move quickly to act responsibly with regard to the law.) However, FISA also permits the President to authorize warrantless surveillance if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

This isn’t a particularly unclear law; in fact, as laws go, it seems pretty straightforward. If it is necessary to protect against a hostile act by a foreign power, electronic surveillance can be carried out provided that warrants are obtained. Warrantless surveillance is also permitted in the case of non-Americans if the President so deems.

After 9/11, GWB issued an executive order that weakened this stipulation. The NSA was allowed to conduct warrantless surveillance of telephone calls. Unfortunately, I can’t quote the executive order—it’s classified for no as-yet-credible reason—but it was supposed to apply (according to Alberto “Obstruction” Gonzales) to phone calls originating overseas, where one of the participants (even if a US citizen) is suspected of a link to a terrorist organization. Unfortunately, this executive order is a violation of 50 USC §1802(a)(1)(B).

In short, it’s illegal.

It would have been at least understandable if used in a targeted way in the extraordinary case of imminent attack, but this carte blanche grant was ripe for abuse, and in fact, was almost certainly and immediately abused by the administration.

Nowhere is this more evident than in the case of AT&T’s installation of network surveillance equipment at a major Internet switch in San Francisco. This was a massive trawl of perfectly legitimate traffic engaged in by law-abiding American citizens in order to try to find a few snippets of incriminating information somewhere.

Now, I’m pretty sure AT&T has lawyers. I’m not a lawyer, but I was able to find the law pretty quickly. Certainly AT&T could have said at any point before doing this, “Y’know, this doesn’t seem legal.” Instead, they chose the responsibility of installing an entire closet full of equipment for an illegal purpose.

Now, the Bush administration wants them to have immunity from any lawsuits over this sordid affair.

That makes perfect sense. Lots of things come out in lawsuits. Things make their way into the public record—abuse of power, blatant disregard for the law, those messy sorts of things that corrupt government just hates. Assuming this latest attempt to grant immunity to telecommunications companies passes, no doubt the Bush administration will want to grant immunity to other upstanding firms like Blackwater, Halliburton, KBR—yep, pretty much any firm that has committed crimes in the name of “fighting terrorism” will be getting off the hook.

Part of what makes America so precious is that nobody is above the law. Nobody. Not the President, nor the President’s lackeys. Republicans in particular have made a habit of beating this particular drum, and increasingly loudly during the Clinton years—to the point of obnoxious wastefulness. Now? Silence. Republicans are now all about letting people off the hook, because it might embarrass them.

It’s contemptable hypocrisy, and deserving of no respect at all. What’s more interesting is that the “Protect America Act” (S. 1927), which is what all this hubbub is over, which GWB has been pushing so hard on as a necessary defense against terrorism, will be vetoed if the immunity clause is removed.

That means, if you follow his always-questionable “logic,” that GWB is willing to endanger the country in order to protect himself and his cronies—and Republican legislators are willing to help him do that.

At what point can we just move toward impeaching this administration?

Update (4:45pm): Glenn Greenwald points out in an update to one of his columns (behind a subscription, so I can’t really share the link) something I hadn’t caught: the use of the phrase “good patriotic corporate citizen.” Greenwald has it right: it’s creepy and Orwellian. This administration has produced more Orwellian rhetoric than any other American presidential administration I can think of.