Blank Check for Domestic Spying

Responding to fear-mongering by the Bush administration in August, the
Democrat-led Congress put its stamp of approval on the unconstitutional
wiretapping of Americans. Bush has perfected the art of ramming ill-considered
legislation through Congress by hyping emergencies that don’t exist. He
did it with the USA PATRIOT Act, the authorization for the Iraq war, the
Military Commissions Act, and now the Protect America Act of 2007, which
amends the Foreign Intelligence Surveillance Act (FISA). 

FISA was enacted in 1978 in reaction to the excesses of Richard Nixon and
the FBI, who covertly spied on critics of Administration policies. FISA
set up a conservative system with judges who meet in secret and issue nearly
every wiretapping order the Administration requests. 

But that wasn’t good enough. In 2001 Bush secretly established his Terrorist
Surveillance Program, with which the National Security Agency has illegally
spied on Americans. Instead of holding the executive accountable for his
law-breaking, Congress capitulated once again to Bush’s strong-arm tactics.
As Congress was about to adjourn for its summer recess, Bush officials
threatened to label anyone who opposed their new legislation as soft on
terror. True to form, Congress—including 16 Senate and 41 House Democrats—caved. 

The new law places the power to authorize electronic surveillance in the
hands of the attorney general (AG) and the director of national intelligence
(DNI). FISA had required the government to convince a judge there was probable
cause to believe the target of the surveillance was a foreign power or
the agent of a foreign power. (The law didn’t apply to wiretaps of foreign
nationals abroad.) Its restrictions were triggered only when the surveillance
targeted a U.S. citizen or permanent resident or when the surveillance
was obtained from a wiretap physically located in the United States. The
attorney general was required to certify that the communications to be
monitored would be exclusively between foreign powers and there was no
substantial like- lihood a U.S. person would be overheard. 

Under the new law, the AG and DNI can authorize “surveillance directed
at a person reasonably believed to be located outside of the United States.”
The surveillance could take place inside the U.S. and there is no requirement
of any connection with al-Qaeda, terrorism, or criminal behavior. The requirement
that the AG certify there is no substantial likelihood a U.S. person will
be overheard has been eliminated. 

By its terms, the new law will sunset in 180 days, but this is a specious
limitation. The AG and DNI can authorize surveillance for up to one year.

There is provision for judicial review, but the requirement is weak since
the court doesn’t have to respond until 180 days after the effective date
of the surveillance and the standard of review is appallingly low. It’s
limited to whether the government’s determination is “clearly erroneous.”
Even if the court were to find the proffer clearly erroneous, the AG and
DNI have another 30 days to fix it. That takes the entire review process
beyond the six month sunset period. Meanwhile, the surveillance can continue. 

The Supreme Court held in the 1967 case of Katz v. United States that government
wiretapping must be supported by a search warrant based on probable cause
and issued by a judge. In 1972 the Court, in U.S. v. U.S. District Court
(Keith), struck down warrantless domestic surveillance. The Court has recognized
the “special needs” exception to the warrant requirement. The special need
must be narrowly tailored to the problem. However, the new law is much
too broad to come under this exception. Congress eliminated any need that
the person surveilled be a foreign power or an agent of a foreign power.
The government need only show it is seeking “foreign intelligence information.”
There is no requirement of any connection with terrorism. The special needs
exception also required an absence of discretion in the implementing authority,
but there is unlimited discretion now as long as the target is reasonably
believed to be outside the United States. 

The AG is required under the new law to report to Congress semi-annually,
but only on incidents of non- compliance. Can we really trust the AG to
be forthcoming about compliance with this law? Senator Christopher Dodd
told Glenn Greenwald at the YearlyKos convention September 10, 2007 that
neither he nor the other senators have any idea how the Bush administration
has been using its secret program to spy on Americans. 

Finally, the new law requires telephone companies to collect data and turn
it over to the federal government. It also grants immunity against lawsuits
to these companies, many of which are defendants in civil cases. 

Indeed, the mad rush to push this legislation through was likely a preemptive
strike by Bush to head off adverse rulings in lawsuits challenging the
legality of his Terrorist Surveillance Program. 

In six months, when the Protect America Act of 2007 is set to expire, there
will be even more political pressure on Congress to appear tough on terror
in the run-up to the 2008 presidential election. Unfortunately, we cannot
expect a Congress that so easily caved in to the fears hyped by the Bush
administration to stand firm in support of the Constitution. 


Marjorie Cohn is a professor at Thomas Jefferson School of Law and president
of the National Lawyer’s Guild.