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FISA Farce Passes

Ann Schneider Jul 18, 2008

In January, Sen. Barack Obama (D-Ill.) vowed to join a filibuster against legislation that would grant immunity to telecommunication companies who participated in President Bush’s warrantless wiretapping program for years. But on July 9, the presumptive presidential candidate threw his support behind “compromise” legislation that eviscerates the Fourth Amendment and greatly expands the government’s power to monitor your email and telephone conversations.

Probable cause and warrants for electronic surveillance? Goodbye to all that! Congress capitulated on the FISA Amendments Act (FAA) and opened the floodgates for the National Security Agency (NSA) to collect the communications of billions of people overseas and seize millions of international communications of Americans. This includes the emails from your cousin who enlisted in the U.S. Army and was sent to Iraq.

The latest legislation whittles down the checks and balances of the Foreign Intelligence Surveillance Act (FISA) of 1978, which was designed to balance protecting Americans’ domestic conversations while outlining specific circumstances and legal procedures for the wiretapping of those people abroad who mean us harm. Only “foreign powers and agents of a foreign power” could be tapped with a FISA warrant, available from the Foreign Intelligence Surveillance Court. It didn’t seem difficult to go through the process — the court only turned down only a handful of wiretap warrants of some 20,000 requests during its 30- year history. So spying on the likes of Muammar al-Qaddafi, Saddam Hussein and Mahmoud Ahmadinejad was never hard.

FISA also gave the executive branch 15 days to conduct warrantless wartime domestic electronic surveillance in “exigent circumstances.” In reality, the 15 days was to give the President enough time to ask Congress to change the law. The big irony of FISA and its recent amendments is that Bush never asked to change FISA until it got caught: In December 2005, the New York Times revealed that the NSA was illegally intercepting both foreign and domestic calls and emails without warrants.

And what does this Congress do when confronted with large-scale flouting of its once carefully considered laws? Give retroactive immunity!

So instead of a law designed “to balance the executive branch’s important duty of protecting the national security against an individual’s constitutional rights,” we now have a FISA law that permits surveillance of anyone off-shore upon a mere assertion that “a purpose” of the surveillance is to gather foreign intelligence. A warrant is only required if the target of the probe is an American. But that provision of the law can be easily circumvented by reverse targeting, for example, stating that the spy “target” is your Muslim friend in France as a way to get at your emails.

Except where an American abroad is an admitted target, court warrants will be a thing of the past. It’s now up to the attorney general and the director of national intelligence to certify the need for intelligence gathering. Saves time.

Sen. Russ Feingold (D-WI) deserves credit for fighting the Bush administration’s effort to grant retroactive immunity to the telecommunication companies who willingly aided the administration in its illegal and voracious communication interceptions. At stake is whether we will ever learn the extent of the illegal NSA surveillance since Sept. 11, 2001. The new law directs the courts to dismiss the 40 lawsuits that are pending against the NSA and against the phone companies.

Since few members of Congress have been briefed on the extent and legal justifications for Bush’s “terrorist surveillance program” and none of them are willing to speak out, these lawsuits are our best, and perhaps only, shot at revealing the crimes committed by the outgoing administration.