Power Without Responsibility

The Nation: Surveillance Legislation Boosts Surveillance On Citizens With No Accountability

(The Nation)  This column was written by Aziz Huq.

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After enduring weeks of blistering criticism for Attorney General Alberto Gonzales' inartful elisions about the National Security Agency (NSA) spying activities, the Bush administration has successfully forced on Congress a law that largely authorizes open-ended surveillance of Americans' overseas phone calls and e-mails. How did they do it?

The Protect America Act of 2007 — the title alone ought to be warning that unsavory motives are at work — is the most recent example of the national security waltz, a three-step administration maneuver for taking defeat and turning it into victory.

The waltz starts with a defeat in the courts for administration actions — for example, the Supreme Court's extension of the rule of law to the U.S. military prison at Guantánamo in the 2004 case of Rasul v. Bush, or its striking down of the military commissions in 2006 in Hamdan v. Rumsfeld. The second step does not follow immediately. Rather, some months later, the administration suddenly announces that the ruling has created a security crisis and cries out for urgent remedial legislation. Then (and here's the coup de grâce) the administration rams legislation through Congress — the Detainee Treatment Act of 2005, or the Military Commissions Act of 2006 — that not only undoes the good court decision but also inflicts substantial damage to the infrastructure of accountability.

This time, the sordid dance began with a bad ruling for the government, a ruling that demands some context to be understood.

In January the administration suddenly announced that it was submitting the secretive NSA "terrorist surveillance program" to the Foreign Intelligence Surveillance Court, or FISC, a closed judicial process established by the 1978 FISA law to handle search warrants for foreign intelligence purposes. The move came as federal appellate courts in Ohio and California seemed on the cusp of ruling the NSA's domestic surveillance efforts illegal as violations of FISA and possibly the Fourth Amendment. It seemed a way to forestall defeat in those cases.

But in early summer, a FISC judge declined to approve part of the NSA's activities. While the ruling remains classified, it apparently focused on communication that originated overseas but passed through telecom switches in the United States.

Modern telecommunications work by breaking communications into packets of data and routing them through a network of connected computers. Messages do not travel in a linear fashion: A message from Murmansk to Mali might be routed through California. Many of the largest switches routing international data are located in the United States. As USA Today reported in May 2006, the NSA is already tapping those switches. And since January, the government appears to have obtained "basket warrants," allowing it to trawl this data freely, without any judicial or Congressional oversight.

It seems likely that the judge objected because the NSA was collecting calls that originated overseas but ended in the United States. The NSA can generally get a warrant for such communications — unless there is no evidence that the person under scrutiny is a terrorist. A broad-brush NSA surveillance program, especially one that generates its leads through data-mining, the science of extracting information from large databases, might have exactly this problem.

The second step in the waltz came several months later, with administration allies such as House minority leader John Boehner invoking the FISC ruling on Fox News as justification for a new law. As usual, the administration and its allies had no compunction about using classified information — such as the ruling — when it helped them politically. And as usual, the administration artfully concealed the full details of the ruling even while insisting on it as a spur to immediate action. By waiting for the last week of the Congressional session, the administration in effect cut off the possibility of meaningful debate.

The third step of the waltz has a grim familiarity about it: enactment of a law that is in no way limited to addressing the narrow "problem" created by the FISC ruling. Rather, the Protect America Act is a dramatic, across-the-board expansion of government authority to collect information without judicial oversight. Even though Democrats negotiated a deal with Director of National Intelligence Mike McConnell that addressed solely the foreign-to-foreign "problem" created by the FISC ruling, the White House torpedoed that deal and won a far broader law.

To those who have followed this administration's legal strategy closely, the outcome should be no surprise. The law's most important effect is arguably not its expansion of raw surveillance power but the sloughing away of judicial or Congressional oversight. In the words of former CIA officer Philip Giraldi, the law provides "unlimited access to currently protected personal information that is already accessible through an oversight procedure."

Like the Constitution's Framers, this administration understands that power is accrued through the evisceration of checks and balances. Unlike that of the Framers, its mission is the transformation of limited government into a government that is not accountable to anyone.

On Monday, the administration defended the Protect America Act as a "narrow" fix and rejected accusations that it authorized a "driftnet." To see how disingenuous these claims are requires some attention to the details of the legislation.

The key term in the Protect America Act is its licensing of "surveillance directed at a person reasonably believed to be located outside of the United States." This language has a superficial reasonableness, since domestic surveillance has long been understood to raise the most troubling abuse concerns.

But the trouble with this language is that it permits freewheeling surveillance of Americans' international calls and e-mails. The problem lies in the words "directed at." Under this language, the NSA could decide to "direct" its surveillance at Peshawar, Pakistan — and seize all U.S. calls going to and from there. It could focus on Amman, or Cairo, or London, or Paris, or Toronto. Simply put, the law is an open-ended invitation to collect Americans' international calls and e-mails.

Further, the law does not limit the collection of international calls to security purposes: Rather, it seems the government can seize any international call or e-mail for any reason — even if it's unrelated to security. Indeed, another provision of the law confirms that national security can be merely one of several purposes of an intelligence collection program. This point alone should sink the administration's claim to be doing no more than technical fiddling. While the FISA law limited warrantless surveillance absolutely, this law licenses it, not only for national security purposes but also for whatever purpose the government sees fit.

Of further concern is the "reasonably believe" caveat. This means that so long as the NSA "reasonably" believes its antennas are trained overseas, wholly domestic calls can sometimes be collected. And since the NSA uses a filter to separate international calls from wholly domestic calls, it need only "reasonably believe" that it's getting this right. It's this new latitude for error that is troubling, especially because this isn't an administration known for its care when the rights and lives of others are at stake. It remains deeply unclear how much domestic surveillance this allows.

The problems created by this loosening of standards are compounded by the risibly weak oversight procedures contained in the law. Rather than issuing individualized warrants, now the Director of National Intelligence and the Attorney General can certify yearlong programs for collecting international calls. The program as a whole is placed before the FISA court, which can only invalidate those procedures and claims that are "clearly erroneous." The government thus has to meet an extraordinarily low standard, in a one-sided judicial procedure in which the court has no access to details of the program's actual operation.

Congressional oversight is even more laughable. Attorney General Gonzales, that paragon of probity and full disclosure, is required to report not on the program's overall operations but solely on "incidents of noncompliance." Of course, given how weak the constraints imposed by the law are, self-reported noncompliance is likely to be minimal.

Finally, some advocates and legislators have taken comfort in the law's six-month sunset provision. But this means that the act will be up for authorization in the middle of the presidential campaign, an environment in which the pressures to accede to administration demands will be even higher than usual. And the law doesn't really sunset after six months: The provision is artfully drafted to allow the NSA to continue wielding its new surveillance powers for up to a year afterward.

The Protect America Act, in short, does not live up to its name: It does not enhance security-related surveillance powers. Rather, it allows the government to spy when there is no security justification. And it abandons all but the pretense of oversight. The result, as with so many of this administration's ill-advised policies, is power without responsibility — and it is by now all too clear how wisely and carefully this administration wields power in the absence of accountability.

One coda to this story is worth adding. The Justice Department is unlikely to take action against Representative Boehner for his partisan invocation of classified information on network news. Newsweek reported this week that former Justice Department lawyer Thomas Tamm is being investigated apparently in connection to leaks of information about the NSA's domestic surveillance. So goes Gonzales Justice: Politicized manipulation of classified information gets the green light, while hardworking career officials become targets for speaking out when they see the law being violated.

[kaiyo4u]

This will take a concerted effort and lawsuits filed simultaneously in all federal courts against those who abdicated those laws.
This would be a very dangerous thing though. For those who are creating the status quo would fight vehemently and lives would be endangered.
I think it is time to get those laws into the public attention just show them that our current government is not the Republic it once was and to make them aware that we no longer have the rights we once had. Will the public reaction cause a stir? It is doubtful, too many people are just concerned with making a living.
Another friend researched statistics for public awareness and care of the Constitution and found the numbers are about the same as when Patrick Henry made his speech ending in %u201CGive me Liberty or give me death%u201D. That number is about 30%. They said those numbers came from the National Write Your Congressman.

There was a congressman who was a celebrity who died a few years ago in a skiing accident. A man who was an accomplished skier, who had just introduced legislation to bring truth back into Congress, I find the timing of his death to be somewhat suspicious.
It would seem our current government will go to extremes to protect its current status quo.

[kaiyo4u]

I been ready about that since 1981..in all honesty..what can you do??want to start a revolution??
its like trying to stop the inevitable.
Posted by xzavierbrown at 09:27 PM : Aug 10, 2007

If I could find the laws a friend of mine used to legally burn the flag in Ohio in the early '70's, we could start using the laws to our advantage and get rid of those who would do our country harm. These laws took into account granting priviledge (which entails many things our government is doing now), any drafting of laws to supersede the ones on the books that specified our basis of law, and the punishments for these offenses. Which was holding those who did abdicate the laws he found (in old Federal Code books) for Treason by any means possible. Which means if they resisted, they could be shot on site.

[xzavierbrown]

Posted by kaiyo4u at 12:10 PM : Aug 10, 2007
+ report abuse

*****

I been ready about that since 1981..in all honesty..what can you do??want to start a revolution??
its like trying to stop the inevitable.

[twylacrat]

Oh little mudrose: When they came for the Jews, I said nothing, for I was not a Jew. When they came for the academics, I said nothing, for I was not an academic. When they came for me, there was no one left to protest. Follow your own logic out to its natural conclusion.

[kaiyo4u]

Posted by NavyRetired2 at 07:56 PM : Aug 08, 2007

I agree with you%u2026

xzavierbrown: You should read the history of the world banks , of which the Federal Reserve is part of .
Our forefathers were dead set against ANY private bank loaning money to our government. They knew the repercussions. The majority of the American people are brainwashed and/or do not have any knowledge as to how these entities operate.
Just try searching to see who actually owns the Federal Reserve, I think, you%u2019ll find you cannot find who owns it.

[kaiyo4u]

****your retort pretty much indicated that THERE ARE CHECKS AND BALANCES..if there is none..you would have nothing to post

Those checks and balances occurred after the fact not before. Checks and balances are supposed to prevent abuses from happening in the first place...

[tbweb]

I dont think those muslim jihadist OR THE WORLD will abide to your schedule of "peace and normalicy" after Bush.

Posted by xzavierbrown at 03:59 PM : Aug 09, 2007,,,

9/11 could have been a simple criminal act, successful because of security lapses. It's still possible there is no war at all except the war of choice created by the Bush administration. Of course the U.S. is at war now, but if the U.S. had not invaded Iraq, the wrong battle field, would the U.S. need to be at war at all? There is still debate to this day if 9/11 was the start of a war or just a stand alone criminal act, no attacks since 9/11 does not suggest any war and it would be easy to explode car bombs in the U.S. if al Qaeda or Islamic Terrorist really wanted to.

[catt42701]

Mudrose, there is a difference from collecting evidence from a network of spies in other countries and data mining the internet, banks, phone companies, etc. in America. When a law enforcement agency wants to tap a line, read records, etc. they have to get a warrent. The president should too. I want my privacy and I think a citizens privacy should be honored at all times unless there is a warrent with cause.

[catt42701]

I e-mail a friend overseas everyday. I even send her a card or call her at times. Am I going to be monitered because of my friendship. I've communicated with her for nearly 30 years and as far as I know she isn't a radical anything, just a very good, very smart person and nurse. It reads like they may be mining my computer right now because I regularlly send e- mail overseas.

[xzavierbrown]

The U.S. will return to normal when President Bush leaves office and hopefully the World will respond and go in a new direction with U.S.! Of course Terror will always be there because Terror is a tactic, not a philosophy. President Bush doesn't include the Congress or the American people, sometimes I get the impression Pres. Bush thinks the U.S. is the enemy too! Strange being isolated like that.

Posted by tbweb at 03:04 AM : Aug 09, 2007
+ report abuse

*****

I dont think those muslim jihadist OR THE WORLD will abide to your schedule of "peace and normalicy" after Bush.
At this stage in history..terrorism is a weapon.
Last, Congress does know what goes on, they voted for it. Now in terms of giving our strategies to the New York Times..maybe you forgot..we are at war..if given the chance i would not be suprised if the liberal media would broadcast the whereabouts of our troops or what our troops are doing for ratings.

[hwk_i67]

For nearly 200 years it was understood by all three branches of government that the grant of "executive power" to the president included control over intelligence gathering, especially in "wartime". It is an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution.

Posted by mudrose at 01:04 PM : Aug 09, 2007

Okay, so just read through the entire section 1, article 2 of the constitution. It says no such thing. And neither do sections 2-4 of article 2 either. So either you quoted the wrong section of the constitution, or you become a part of the problem by fostering partisan unrest, which is the last thing this country needs.

That being said, in all sincerity, thank you for giving me cause to reread the constitution. It has been far too long. Peace.

[mudrose-2009]

Part IV

Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. Please keep this in mind next time you hear Congress telling you that they are protecting our rights. They aren't. And they aren't protecting our national security either.

[mudrose-2009]

Part III

Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order," ultimately the test being whether the legitimate government interest involved in discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. During the course of our travels on airplanes and trains, people have accepted intrusive government searches of their luggage and person without the slightest showing of probable cause. People in the streets of our cities use cell phones to communicate with each other and we don%u2019t have to try very hard to hear some segment of their private lives unfolding in the public square. It is not the President, Alisa, but Congress that is trampling on the rule of law first, by creating the FISA statute which attempts to reduce the president's constitutional authority, and secondly, by inserting judges into the intelligence-gathering business where they do not belong. Even the courts have acknowledged that "the president does have the authority" and "FISA cannot encroach" on the president's constitutional power.

[mudrose-2009]

Part II

The reason that I say we are all being duped is that the President has a very powerful instrument to back him up when it comes to eavesdropping on agents of foreign powers situated overseas who are hell bent on killing Americans. And that instrument is called the American Constitution. For nearly 200 years it was understood by all three branches of government that the grant of "executive power" to the president included control over intelligence gathering, especially in "wartime". It is an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. And, for constitutional purposes, the joint resolution that passed with but a single dissenting vote by Congress on Sept. 14, 2001, was "the equivalent of a formal declaration of war".

[mudrose-2009]

Part I

Congressional Democrats don't give a *** about our national security. It's all about politics and convincing the American public under the guise of oversight that what has been going on throughout this President's tenure is an arrogant attempt by the Executive to trample on the rule of law. However, it is this Congress and solely the Democrats and their media cohorts that are duping the people by spoon feeding the public on a daily basis that it is they and they alone who are so valiantly struggling to protect our rights. Consequently most Americans these days seem to feel that "it is Congress that has capitulated to the Bush administration's relentless insistence that it needed yet more power to eavesdrop without judicial review". Apart from making George Bush seem Imperial and God-like which, alas, he is not, I am sorry to say that you have bought into this ruse this hypocritical Congress has perpetuated in its attempt to vilify George Bush at every possible turn.

[juwboy]

walt1944 (referring to Nazi Germany) said:

"Children turned against parents, wives against husbands, brothers against brothers..."

It's already happened here, too.

During the Civil War.

[tbweb]

17 months after years after bush..decades after bush ..there would still be terrorism..if we remain a wishy washy bunch

Posted by xzavierbrown at 11:35 PM : Aug 08, 2007,,,

After 9/11 President Bush's approval rating was through the roof, President Bush had the entire World behind the U.S., he blew a golden opportunity, threw it away, squandered. The U.S. will return to normal when President Bush leaves office and hopefully the World will respond and go in a new direction with U.S.! Of course Terror will always be there because Terror is a tactic, not a philosophy. President Bush doesn't include the Congress or the American people, sometimes I get the impression Pres. Bush thinks the U.S. is the enemy too! Strange being isolated like that.

[xzavierbrown]

Fact is, the powers that are truly in control, Bush's superiors in the world finance community/cartel, are he11-bent on a worldwide government and complete global control. Whoever replaces Bush in the Whitewashed House will continue right along the decided path. They may not look as stupid, but the end effect is the same.
Posted by WrldBnkCntrl at 11:00 PM : Aug 08, 2007
+ report abuse

*****

do you know who these 'world finance cartel' works for????????? everytime you take get your paycheck and spend it...you become the alpha and the omega of your conspiracy.

[xzavierbrown]

7 more months before America returns to normal and this nightmare will be over, wow, what a ride! Who knew?
Posted by tbweb at 09:30 PM : Aug 08, 2007
+ report abuse

******

you remind me of Goldof and the Live8..poverty ends after his concert...poverty still remains..

17 months after years after bush..decades after bush ..there would still be terrorism..if we remain a wishy washy bunch

[wrldbnkcntrl]

"17 more months before America returns to normal and this nightmare will be over, wow, what a ride! Who knew?
Posted by tbweb at 09:30 PM : Aug 08, 2007"

I wish it were that simple brother.

Fact is, the powers that are truly in control, Bush's superiors in the world finance community/cartel, are he11-bent on a worldwide government and complete global control. Whoever replaces Bush in the Whitewashed House will continue right along the decided path. They may not look as stupid, but the end effect is the same.