Civil Liberties: ‘One Bomb Away’ From No Oversight
Civil Liberties: ‘One Bomb Away’ From No Oversight
Last month, just before leaving for August recess, Congress caved to White House pressure and passed a revision to the Foreign Intelligence Surveillance Act (FISA), known as the Protect America Act, which "they may not have fully understood" and "may have given the administration more surveillance powers than it sought."
|SEPTEMBER 5, 2007||by Faiz Shakir, Amanda Terkel, Satyam Khanna, and Matt Corley
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‘One Bomb Away’ From No Oversight
Last month, just before leaving for August recess, Congress caved to White House pressure and passed a revision to the Foreign Intelligence Surveillance Act (FISA), known as the Protect America Act, which “they may not have fully understood” and “may have given the administration more surveillance powers than it sought.” Due to ambiguous language, the new legislation may allow, without court approval, certain types of physical searches on American soil and the collection of Americans’ business records. Additionally, the legislation trampled warrant requirements by broadly redefining “electronic surveillance” while shifting significant oversight responsibility for the surveillance from the FISA court to the Attorney General and the Director of National Intelligence. Calling the bill “unacceptable,” Speaker of the House Nancy Pelosi (D-CA) wrote to the respective chairmen of the House Judiciary and House Intelligence committees soon after the legislation passed, asking that they address the “many deficiencies” in the Protect America Act before the legislation sunsets in five months. Senate Majority Leader Harry Reid (D-NV) has requested similar fixes in the Senate. This morning, in a hearing before the House Judiciary Committee, Congress will take its first steps towards addressing the overreach of the bill. But they can expect stiff resistance from the Bush administration, which has signaled a desire to further strip oversight of their surveillance powers.
SEEKING IMMUNITY FOR PAST CRIMES: The Bush administration is currently seeking “the power to grant legal immunity to telecommunications companies” that violate privacy laws by “cooperating with the White House’s controversial warrantless eavesdropping program.” Though the administration refuses to “identify which companies participated in the operations,” at least two companies — AT&T and Verizon — are currently facing lawsuits for their alleged involvement in the program. The administration has invoked the “state secrets” privilege as an attempt to dismiss such lawsuits, but some judges are skeptical of that argument. The administration is pushing forward with an effort to “shield any person who allegedly provided information, infrastructure or ‘any other form of assistance‘ to the intelligence agencies after the Sept. 11, 2001 terror attacks.” Democrats, such as Sen. Ron Wyden (D-OR), charge that the administration’s proposal “would go far beyond protecting private companies and their employees, also giving cover to any government officials who may have broken the law.” But the White House is preparing to push its proposal using its usual scare tactics. In a recent interview with the El Paso Times, Director of National Intelligence Mike McConnell claimed that “if you play out the suits at the value they’re claimed, it would bankrupt these companies.” In the same interview, McConnell ominously warned that public discussion of the administration’s surveillance powers would cause “some Americans…to die.”
LEGISLATION VIA FEARMONGERING: Though the administration has consistently sought expanded surveillance powers since soon after 9/11, the recent push for changes to FISA began in March when a judge on the secret FISA court “challenged for the first time the government’s ability to collect data” through aspects of the administration’s so-called Terrorist Surveillance Program. The White House claimed the ruling, which concluded “that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States,” forced them to seek warrants from the FISA court every time it wanted to capture such communications. Congressional leaders were willing to fix the gap, but demanded proper oversight of the program as well as access to the legal opinions the administration used to originally justify the NSA program. But the administration balked, instead “using fresh reports of a growing terrorism threat” to scare Congress into passing the legislation before leaving for the August recess. “The situation was key to making it work,” said a senior administration official, adding that a July report of a resurgent al-Qaeda was “fortuitous” for the administration’s legislative maneuvering.
CONTEMPT FOR OVERSIGHT: In an interview with The Progress Report soon after the Protect America Act was pushed through Congress, Rep. Joe Sestak (D-PA), one of 183 representatives to vote against the bill, described the administration’s contempt for the oversight provided by the FISA court. “We made the three major changes that [McConnell] wanted,” said Sestak. “The issue here is they just don’t want to come to the FISA court. That’s enough to tell me we need them to.” In recent interviews and an upcoming book, former Bush administration official Jack Goldsmith confirms Sestak’s description of the administration’s fundamental contempt for oversight. “After 9/11, they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like,” writes Goldsmith in his upcoming book. “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.” “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls current vice presidential chief of staff David Addington, whom he described as “the chief legal architect of the Terrorist Surveillance Program,” saying in February 2004. Goldsmith is set to testify before the Senate Judiciary Committee this month at a yet to be determined date.
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