The Surveillance Scam

Why the Protect America Act Is a Bad Idea

Timothy B. Lee | February 7, 2008

In his State of the Union address, President Bush pressed Congress to quickly pass legislation to make permanent the sweeping spying powers that Congress granted last August. Those powers, which include the ability to eavesdrop on foreign-to-domestic communications without meaningful judicial oversight, were due to expire last week. Congress has passed a two-week extension of the law, but that barely gives Congress time to catch its breath before the White House resumes its campaign to make it permanent.

Bush's predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of "roving wiretaps." The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so "in a methodical way that preserves our freedoms." Senate Majority Leader Trent Lott vowed that Congress would not "rush to a final judgment" before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Today's Democratic Congress has been far less protective of Americans' privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about "rushing to judgment." Indeed, both houses of Congress approved the White House's preferred legislation with minimal changes within three days of its introduction.

Why are today's Democrats less concerned with civil liberties than Republicans were a decade ago? Democratic leaders would doubtless point to the 9/11 attacks. Those attacks have certainly contributed to a changed political climate, but they don't justify Congress's panicky reaction to the president's demands. Congress had already expanded eavesdropping powers several times since 9/11. Congress approved new wiretapping authority with the Patriot Act in 2001, and approved further expansions later in 2001 and in 2002, 2004, and 2006. If the new powers the president was seeking weren't urgent enough to include in those revisions to the law, it's hard to believe they were an emergency in August 2007.

Moreover, the powers Congress granted last summer are far broader those sought by the Clinton administration in 1996. The "roving wiretaps" Clinton requested in 1996 and finally received in 1998 merely allowed investigators to obtain a single warrant to bug multiple phones used by a specific individual. In contrast, the Protect America Act completely eliminates the warrant requirement for surveillance "concerning persons reasonably believed to be outside of the United States" — even if one party to a call is an American citizen and the wiretap occurs on American soil. The attorney general is required to disclose to a secret court the general procedures used to choose wiretapping targets, but no judge reviews the list of specific targets to verify that the law is being followed. This evisceration of judicial review is an invitation to future abuses.

The lone virtue of the Protect America Act is that the powers it granted are now set to expire in mid-February. As this revised deadline approaches, Speaker Nancy Pelosi and Majority Leader Harry Reid will once again face pressure to rush the White House's preferred legislation out the door. The president will claim that failure to act before the Protect America Act sunsets will undermine the government's ability to eavesdrop on terrorists.

It's an ominous claim, but it's not true. The Protect America Act allows the administration to "authorize" eavesdropping programs for a year at a time. That means that the government's various warrantless surveillance activities will continue to operate at least through August. And of course, if the need for new wiretaps arises after the act sunsets, the administration still has the opportunity to file for warrants under the Foreign Intelligence Surveillance Act (FISA). FISA even allows the government to begin surveillance first and apply for an emergency warrant after the fact.

In short, the administration will have ample authority to intercept terrorist communications for at least the next six months. As they shepherd FISA reform through Congress, Pelosi and Reid would do well to heed the advice of one of Pelosi's predecessors: "The goal here is not to allow the terrorists to pressure us into suspending the very freedoms that make America precious." Those words are as true today as when Newt Gingrich said them in 1996.

Timothy B. Lee is an adjunct scholar at the Cato Institute.

Comments

just a suggestion|2.7.08 @ 4:20PM|#

Maybe why they should be less credulous? Or skeptical? Why should they be credulous?

|2.7.08 @ 4:29PM|#

I guess he means "credible."

|2.7.08 @ 4:29PM|#

If they can't take the Constitution seriously why should I think they will take FISA and Surveillance seriously?

jp|2.7.08 @ 4:37PM|#

I once received a brief from opposing counsel in which they consistently and repeatedly said that our arguments were "incredulous."

|2.7.08 @ 4:38PM|#

鼠的愉快的年

|2.7.08 @ 4:44PM|#

Credulous - adj.

1. Disposed to believe too readily; gullible.

I also think that Tim's use of it is wrong.

T|2.7.08 @ 4:52PM|#

I don't see the word credulous in the actual article. The unnamed Reasonoid who wrote the blog post needs to fess up and fix it.

And yes, Congress of late has been way too free in handing out infringements on our rights. I'm sure President Obama or McCain will reverse this trend through leadership.

Wait, why's everybody laughing and pointing?

|2.7.08 @ 4:55PM|#

TrickyVic is right.
All the details of the bill are meaningless. When the Executive branch breaks the law, Congress and the people have to hold them accountable, and we know they won't. Some people support the lawbreaking, most don't know and/or don't care. Congress does what the people demand, which is nothing, except maybe change he law to make whatever was done legal, and give responsible parties immunity.

DannyK|2.7.08 @ 5:05PM|#

credulous

[Princess Bride]
I do not think that word means what you think it means!
[/Princess Bride]

|2.7.08 @ 5:09PM|#

INCONCEIVABLE!!

|2.7.08 @ 5:10PM|#

Incroyable!

|2.7.08 @ 5:11PM|#

"Why are today's Democrats less concerned with civil liberties than Republicans were a decade ago?"

Today's Republicans are no better -- they're the ones who passed these laws originally.

|2.7.08 @ 5:14PM|#

I was playing a game recently and one of the characters says "Your past misdeeds will be absconded from the official records and you will be hereby lauded as a great hero, blah blah blah."

I just said to myself "wizzle wuzzle?"

Clarence|2.7.08 @ 5:28PM|#

You'll hear a lot of strange things from now on, George.

|2.7.08 @ 5:29PM|#

Kroykah!

Leonard|2.7.08 @ 5:42PM|#

I'm having trouble figuring out how the Star Trek reference fits in....

|2.7.08 @ 5:53PM|#

Incroyable inspired that exclamation on my part.

Leonard|2.7.08 @ 5:55PM|#

Ah yes

Colonel_Angus|2.7.08 @ 7:20PM|#

According to google J sub D is "happy in mice." These preverts these days, hes worse than that woman that wanted a gander under her frock.

|2.7.08 @ 8:42PM|#

I am so tried of the lame excuse that 9/11 changed the rules. Bullshit. I was in lower Manhattan that day, I saw the towers fall with my own eyes and I didn't feel one tenth the threat to my liberty then I do every time I see another "anti-terrorism" bill. More lives and freedoms have been lost due to the actions of our own government than the actions of Al Qaeda. I wish it could all be blamed on Bush or the Neo-cons, but it is clear that both major parties are in favor of ever increasing federal power.

|2.8.08 @ 8:44AM|#

Why the Protect America Act Is a Bad Idea

Better, it should say:

Why the Protect America Act Is an Evil Idea

It's way past time for pussyfooting around and start saying what this crap really is: absolute, undiluted EVIL.

T|2.8.08 @ 9:31AM|#

It's way past time for pussyfooting around and start saying what this crap really is: absolute, undiluted EVIL.

Yes, because what we all need as libertarians is to be even further branded as whackjobs by calling policy proposals evil. You have to appeal to Americans' xenophobia if you're going to use that word, like Evil Empire or Axis of Evil. It's a no-go on the domestic front.

|2.9.08 @ 1:09PM|#

We have a unitive (emperor) president who authorizes torture and launches aggressive, preemptive wars that kill millions.

We have a justice (sic) department that will not enforce laws against torture, spying, tyranny, and mass murder.

We have a presidential candidate of one of the two major parties who sings, "bomb, bomb, bomb. bomb, bomb, Iran." [IE. a certified war nut].

We have an opposition party that will not lift a finger against this corporatist Empire which has taken over our republic and hides behind the facade of a 'Vichy American' phony government.

We have a vice emperor who would be thrown off the death-star by Darth Vader for being too vicious.

And the whole world is watching and now reporting on this insane and global war criminal Empire!!!

|2.9.08 @ 1:21PM|#

Excellent analysis from WSWS:

"From a constitutional standpoint, the response of the opposition party in such a situation would be a call for impeachment. However, even before the Democrats took control of Congress last January, this option had already been ruled out by the leading figures in the party. Democrats have also shelved the few congressional investigations launched after the revelation of the videotapes' destruction.

The position of the Democratic Party is explained by the fact that the party has been complicit from the very beginning in the policy of torture. The Bush administration is relying on this complicity as its shifts to a position of more openly and aggressively defending waterboarding.

During Mukasey's testimony on Thursday, Republicans on the committee made a point of highlighting comments by Democrats to counteract criticisms of the CIA program.

Republican Representative Daniel Lungren (Calif.) cited Democratic Senator Charles Schumer's statement, made in 2004, that it was necessary to have "balance" in the discussion on torture. "I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake," Schumer said at the time."

Obviously, the Demos party is a full fledged partner with the proto-fascist Repubs in supporting every crime and tyranny of this global corporatist Empire which hides behind the facade of our 'Vichy American' faux government.

|2.9.08 @ 8:51PM|#

Money says that if a new domestic spying allowance law (aka. Protect America Act) is not passed to Bush's liking, and the old law expires, that Bush will orchestrate another contrived terrorist attack (like 9/11), and blame it on the demos.

Ben|2.21.08 @ 9:42AM|#

The bottom line is that the government has no authority to wiretap or any other kind of search without a warrant, and probable cause, supported by oath or affirmation. FISA, by allowing wiretaps prior to warrants, is an illegal operation set up by virtue of fiat power, unauthorized by the government's constituting authority, and in existence only as a prime example of a government completely out of control. FISA criminally implicates congress, the executive, and the courts.