Last weekend the Bush administration pushed through Congress a law to bolster the government’s ability to intercept the electronic communications of foreigners and other “persons reasonably believed to be outside the U.S.” without a court order.
The so-called Protect America Act, which passed both the House and Senate by wide margins just before Congress went on its August recess, allows the government to intercept the phone calls and e-mails of people in the United States who communicate with people overseas, and for the first time, allows the government to intercept communications between foreigners which are merely routed through the United States, as well as conversations of Americans traveling abroad.
The only bright spot in this legislation is that it requires the government to design procedures to prevent the intelligence collection under the law from infringing on the privacy of ordinary Americans and for the Foreign Intelligence Surveillance Court to sign off on those procedures within six months. It also requires a review of the program every six months afterward.
The legislation will “give our intelligence professionals the essential tools they need to protect our nation,” spokesman Tony Fratto said.
Democratic leaders expressed disappointment about the result, but they pointed to language that would require lawmakers to reconsider the key provisions in six months.
“My Republican colleagues chose to rubber-stamp a flawed administration proposal that fails to provide the accountability needed in the light of the administration’s past mismanagement of key tools in the war on terror,” said Senate Majority Leader Harry M. Reid (D-Nev.). — Washington Post
Privacy and civil liberties advocates were not mollified by the privacy provisions in the bill.
“Rather than acting as a meaningful check on the Executive, Congress essentially handed him a blank check to invade Americans’ privacy,” said Electronic Frontier Foundation activism coordinator Derek Slater. “Congress’ actions are particularly disgraceful given that the Administration has concealed the truth about its illegal spying.”
“This bill would grant the attorney general the ability to wiretap anybody, any place, any time without court review, without any checks and balances,” said Rep. Zoe Lofgren, D-Calif., during the debate preceding the vote. “I think this unwarranted, unprecedented measure would simply eviscerate the 4th Amendment,” which prohibits unreasonable searches and seizures.
Republicans disputed her description. “It does nothing to tear up the Constitution,” said Rep. Dan Lungren, R-Calif. — Associated Press
House Democrats complained that they had been “railroaded” into passing the bill, since they were close to passing a much narrower bill when the administration presented its demands for additional powers.
“I’m not comfortable suspending the Constitution even temporarily,” said Rep. Rush D. Holt (D-N.J.), a member of the House intelligence committee. “The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security.” — Washington Post
The rush to push through enhanced spying powers came from a ruling by the Foreign Intelligence Surveillance Court earlier this year that found that several key portions of President Bush’s terrorist surveillance program were illegal.
House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court’s decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.
The judge, whose name could not be learned, concluded early this year 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, according to two other government sources familiar with the decision.
The decision was both a political and practical blow to the administration, which had long held that all of the National Security Agency’s enhanced surveillance efforts since 2001 were legal. The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court, and after it finally did so in January the court ruled that the administration’s legal judgment was at least partly wrong. — Washington Post
This is important to the administration because by monitoring foreign communications from within the U.S., where many of them are routed, the National Security Agency can gain access to over one-third of the world’s communications traffic.
Bush administration officials, though, said that the measure didn’t grant any broad authority to expand the government’s intelligence activities.
In a telephone briefing for reporters on Monday, officials said the administration had set out to resolve a “narrow” technical problem that had called into question whether intelligence officials needed to get a court warrant to intercept foreign-to-foreign communications that happened to pass through American telecommunication switches. But in fact the legislation as enacted not only provides that no warrant is needed in such a situation but also goes further, in giving the administration discretion to eavesdrop on foreign communications that might involve Americans.
The officials who participated in the briefing spoke on condition of anonymity, saying only that doing so would allow them to talk more freely.
They said the legislation did not authorize “a driftnet” aimed at eavesdropping on large volumes of phone calls and e-mail messages inside the United States. But they declined to discuss in detail the N.S.A.’s broader efforts tracing and analyzing the patterns of American communications — who is calling and e-mailing whom — without actually listening to or reading the content of the conversations. Those broader data-mining activities were part of a heated dispute within the administration that led senior Justice Department officials in 2004 to refuse at first to certify the legality of the N.S.A. operations and to threaten to resign in protest over their continuation. — New York Times
On Wednesday, the American Civil Liberties Union filed a motion with the Foreign Intelligence Surveillance Court requesting the release of court orders interpreting the Foreign Intelligence Surveillance Act. “Over the next six months, Congress and the public will debate the wisdom and necessity of permanently expanding the executive’s authority to conduct intrusive forms of surveillance without judicial oversight,” the motion said.
Indeed, the only oversight the program will get is from Mike McConnell, the director of national intelligence, and the attorney general. Alberto Gonzales has hardly proved himself capable of overseeing and preventing abuses of the American people’s rights. His idea of oversight, it seems, is the word’s other definition: to fail to notice, to overlook.
As for McConnell, he says in a letter to the U.S. Senate that he is “committed to keeping the Congress fully and currently informed of how this Act has improved the ability of the Intelligence Community to protect the country and reporting — and remedying — any incidents of non-compliance.” It remains to be seen if he’s up to the task.
There are at least three other problems with this law and the surveillance system it represents.
First among them is that the government will pay communications providers to create a potentially permanent surveillance infrastructure out of the country’s communications facilities, one which could be turned inward at any time and without legal recourse.
In short, the law gives the Administration the power to order the nation’s communication service providers — which range from Gmail, AOL IM, Twitter, Skype, traditional phone companies, ISPs, internet backbone providers, Federal Express, and social networks — to create possibly permanent spying outposts for the federal government.
These outposts need only to have a “significant” purpose of spying on foreigners, would be nearly immune to challenge by lawsuit, and have no court supervision over their extent or implementation.
Abuses of the outposts will be monitored only by the Justice Department, which has already been found to have underreported abuses of other surveillance powers to Congress.
In related international news, Zimbabwe’s repressive dictator Robert Mugabe also won passage of a law allowing the government to turn that nation’s communication infrastructure into a gigantic, secret microphone. — Threat Level
A second problem is that this surveillance infrastructure is unlikely to be secure, and will make an inviting target for hackers, criminals and other countries, not to mention the very terrorists it’s supposedly meant to catch.
Grant the NSA what it wants, and within 10 years the United States will be vulnerable to attacks from hackers across the globe, as well as the militaries of China, Russia and other nations.
Such threats are not theoretical. For almost a year beginning in April 2004, more than 100 phones belonging to members of the Greek government, including the prime minister and ministers of defense, foreign affairs, justice and public order, were spied on with wiretapping software that was misused. Exactly who placed the software and who did the listening remain unknown. But they were able to use software that was supposed to be used only with legal permission.
The United States itself has been attacked. In six hours in August 2006, remote attackers entered computers at the Army Information Systems Engineering Command at Fort Huachuca, Ariz.; the Defense Information Systems Agency in Arlington; the Naval Ocean Systems Center in San Diego; and the Army Space and Strategic Defense Command in Huntsville, Ala. The hackers transported more than 10 terabytes of data to South Korea, Hong Kong or Taiwan, and from there to the People’s Republic of China. Each intrusion was only 10 to 30 minutes. The downloaded information included Army helicopter mission-planning-systems specifications and flight-planning software used by the Army and Air Force. — Washington Post
Why don’t we save the taxpayers a few hundred billion dollars and just publish all the government’s secrets on the Internet where everybody can get to them without having to waste 30 minutes hacking into an insecure system?
Finally, widespread surveillance introduces destructive changes in behavior in the population under surveillance.
Now imagine a society where everyone knows they are or may be watched as they walk through the streets, or while surfing online. That – as in societies like Hitler’s Germany or Soviet Russia – will have tangible and widespread psychological consequences, reinforcing conformity, and literally crippling the ability to make autonomous and ethical decisions, he argued.
An analogy might be the well-studied population of children with overprotective mothers, the philosopher said. Studies show that such children tend to be indecisive, dependent on others, have little “ethical competence,” and often live suppressed and unhappy lives.
As or more disturbing may be the political implications of having a surveillance infrastructure in place.
Many philosophers reject the notion that given technologies are inherently politically neutral, [philosopher Sandro] Gaycken said. Surveillance, for example, can be used to support democratic values of freedom, equality, and state neutrality – but its tendency to create a watched and a watching class lends itself better to totalitarianism. In a country such as Germany, which has seen democracy slide into the Nazi state, such a warning resonates strongly.
“Surveillance stabilizes totalitarianism, and destabilizes democracy,” Gaycken warned. — Threat Level
So the end result is 300 million Americans who think they’re safe because the government is watching out for them by watching them, even though they weren’t doing anything wrong to begin with. Shortly, the people begin watching what they say, suppressing themselves out of fear they could be mistaken for a terrorist, and the destruction is complete.