Congress put its stamp of approval on the unconstitutional wiretapping of Americans by amending the Foreign Intelligence Surveillance Act (FISA) in the “Protect America Act of 2007.”
The new law takes the power to authorize electronic surveillance out of the hands of a judge and places it 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 likelihood a U.S. person would be overheard.
Under the new law, the AG and the DNI can authorize “surveillance directed at a person reasonably believed to be located outside of the United States.” The surveillance can take place inside the United States, and there is no requirement of any connection with al-Qaeda, terrorism or criminal behavior. The mandate that the AG certify there is no substantial likelihood a U.S. person will be overheard has been eliminated.
The new law violates the Fourth Amendment. The Supreme Court has held that government wiretapping must be supported by a search warrant based on probable cause and issued by a judge. The Court has struck down warrantless domestic surveillance.
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 currently defendants in civil cases.
The rush to push this legislation through last week was likely a preemptive strike by Bush to head off adverse rulings in lawsuits challenging the legality of his Terrorist Surveillance Program. On August 9, a federal district court in San Francisco was to hear oral arguments by lawyers from the Center for Constitutional Rights and the National Lawyers Guild in CCR v. Bush. And on August 15, Guild lawyers and others will argue Al-Haramain v. Bush in the 9th U.S. Circuit Court of Appeals.
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. Just before the statute is set to expire around February 1, 2008, they could approve surveillance that will last until after Bush leaves office.
The National Lawyers Guild calls on Congress to repeal the “Protect America Act of 2007.”
See our last post on surveillance state.