Commentary: The Protect America Act and Legislation Related to the Domestic Surveillance Program

First there was the Military Commission Act, passed after the Court questioned the suspension of habeas corpus. Now, after repeated revelations of warrentless wiretaps, we have the Protect America Act of 2007, amending the Foreign Intelligence Surveillance Act (FISA) of 1978, which required judicial oversight for most federal wiretapping conducted in the United States and was enacted after revelation of CIA abuses. The conservative Cato Institute’s adjunct scholar Timothy B. Lee wrote about the latest legislative initiative: “I suppose if the Bush administration can opt out of habeus corpus merely by declaring someone an enemy combatant, they can opt out of the Fourth Amendment by declaring their surveillance activities to be state secrets.”

This law enables the National Security Agency to:

  • collect foreign communications that pass through a communications node on U.S. soil without a warrant from the FISA Court
  • intercept and record without a warrant electronic communications involving people “reasonably believed to be outside the United States.”
  • monitor calls going overseas that originate in the United States, if the government deems the recipient to be the target of a U.S. probe.

Under the new law, FISA will only examine whether Attorney General Alberto Gonzales’ guidelines for targeting overseas suspects are appropriate. AG Gonzales is the same official who argued that the Geneva Conventions need not apply in matters of torture.

How had I missed all consideration of this new legislation? I looked the measure up on the Library of Congress THOMAS legislative information system and learned that Senator Mitch McConnell (R-KY) had introduced S. 1927 on August 1, 2007.

President Bush signed the bill on August 5, the same day that the Washington Post ran a front page article, House Approves Wiretap Measure: White House Bill Boosts Warrantless Surveillance, by staff writers Ellen Nakashima and Joby Warrick. The prior day’s front page featuredSenate Votes To Expand Warrantless Surveillance: White House Applauds; Changes Are Temporary by the same authors.

The strong response to the law has included the conservative John Birch Society stating that it is a threat to traditional liberties. Research associate Mary Benoit writing for the organization’s newsfeed said, “Ironically the plan to “protect America” was intentionally withheld from the American citizens in an effort to ensure its passage. How is that for Doublespeak?…[O]ne must not ignore the root of the problem, and that is the Executive branch assuming surveillance authority without the consent of Congress…It is this example of the “accumulation of all powers” that James Madison warned us about in Federalist Paper #47 that is described as the “very definition of tyranny.””

Here is a summary of what happened to the Democrats’ initiatives to counter the administration’s curtailment of civil liberties in the name of national security:

Also notably missing Congressional action is the bi-partisan measure H.R. 2211 introduced May 8, 2007 by Jeff Flake (R-AZ) to require the President to transmit to Congress a report on every program of the Federal Government that authorizes or requires the gathering of information on United States persons in the United States, established whether in whole or in part pursuant to the “all necessary and appropriate force” clause contained in the Authorization for Use of Military Force (Public Law 107-40) which sits in the House Committee on Foreign Affairs.

The House approved the Protect America Act August 4, on a vote of 227 to 183, after the Senate passed the bill the previous day on a vote of 60 to 28. Barbara Boxer (D-CA) and Byron Dorgan (D-ND) did not vote. Democrats supporting the measure included: Dianne Feinstein (CA), Evan Bayh (IN), Thomas Carper (DE), Bob Casey (PA), Kent Conrad (ND), Daniel Inouye (HI), Amy Klobuchar (MN), Mary Landrieu (LA), Blanche Lincoln (AR) Barbara Mikulski (MD), Claire McCaskill (MO), Bill Nelson (FL) Ben Nelson (NE), David Pryor (AR), Ken Salazar (CO) and Jim Webb (VA).

Former Democrat Joe Lieberman (I-CT), who also voted in favor of the bill, “We’re at war. The enemy wants to attack us. This is not the time to strive for legislative perfection.”

The sole concession to opponents of the measure was McConnel’s amendment that the bill be reconsidered in six months. This sunset clause was insufficient for Congressman Rush Holt (D-NJ), who said, “I’m not comfortable suspending the constitution even temporarily. 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.”

This seems to include virtually any calls, e-mails and other communications. There is a related class action suit by the Electronic Frontier Foundation (EFF) against AT&T pending in the Ninth Circuit Court of Appeal, Hepting v. AT & T, Case No. 06-17132 . It involves alleged collaboration with the National Security Agency (NSA) in electronically eavesdropping on the phone and e-mail messages of millions of Americans, both domestic and overseas, as these communications passed through the AT&T system. In light of reports of domestic spying on peace activists and others, White House Deputy Press Secretary Tony Fratto’s statement that the Protect American Act is not meant to increase eavesdropping on Americans or “to affect in any way the legitimate privacy rights” of U.S. citizens, is open to question.

Gregory Nojeim, senior counsel at the Center for Democracy and Technology predicted that the bill’s approval would lead to the monitoring of ordinary Americans by the NSA. “Americans who communicate with a person abroad can count on one thing: The NSA may be listening.”

The Center for National Security Studies provided this analysis: “…the sunset has an exception that would allow any directives by Attorney General Gonzales and Director of National Intelligence McConnell that commandeer access to US telephone and internet companies to remain in effect until their expiration (which is likely to be until the end of the administration since the directives can be issued for up to one year, so could be issued to last for the next six months and then reissued on the eve of the sunset, in January 2008, to remain in effect until this administration is finally over in January 2009). “

A “senior intelligence official” told the Washington Post that in cases in which an overseas target is communicating with people in the United States not relevant to an investigation, “You won’t see data mining in there. You won’t see vast drift net surveillance of Americans. . . . What we do not do is target people in the United States without a warrant.”

However, the Washington Post quoted one angry Democratic lawmaker who spoke on the condition of anonymity, “There are a lot of people who felt we had to pass something. It was tantamount to being railroaded.”

Jerrold Nadler (D-NY) said lawmakers were being “stampeded by fearmongering and deception” into voting for the bill. Jane Harmon (D-CA) warned that the bill would lead to “potential unprecedented abuse of innocent Americans’ privacy.”

On August 2, Democratic leaders had thought they’d reached a deal with the government’s chief intelligence official, Director of National Intelligence Mike McConnell, only to be presented with a new list of conditions at the last minute.

While the White House and McConnell denied that any deal had been reached. Brendan Daly, spokesman for House Speaker Nancy Pelosi (D-CA) said of McConnell, “We did everything he wants, and now he says he doesn’t like the bill. They didn’t move the goal post; they moved the stadium.”

Said Congresswoman Jan Schakowsky (D-IL), an intelligence committee member, I think the White House didn’t want to take ‘yes’ for an answer from the Democrats.”

August 2, Greg Miller of the Los Angeles Times reported that the previous day officials had revealed a FISA court ruling leading to the bill in “Court puts limits on surveillance abroad.” In response to passage of Protect America Act of 2007, the American Civil Liberties Union filed a motion with the FISA Court seeking public disclosure of recent orders. “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.”

“Unless this Court releases the sealed materials, this debate will take place in a vacuum.”

“Publication of the sealed materials would assist the public in evaluating the significance of recent amendments to FISA and determining for itself whether those amendments should be made permanent.

Timothy Lynch, director of Cato’s Project on Criminal Justice, wrote in “Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism,”

“This cycle of terrorist attack followed by government curtailment of civil liberties must be broken–or our society will eventually lose the key attribute that has made it great: freedom. The American people can accept the reality that the president and Congress are simply not capable of preventing terrorist attacks from occurring. Policymakers should stop pretending otherwise and focus their attention on combating terrorism within the framework of a free society.”

The Electric Frontier Foundation is conducting a campaign to contact members of Congress to repeal the Act. Its compilation of op-eds about the Act can be found here. Meanwhile, the appeals court heard the group’s suit against ATT August 15 in San Francisco and will release its ruling at a later date. Missouri, Maine, New Jersey, Connecticut, and Vermont have also launched investigations under their respective state laws concerning AT&T’s alleged cooperation in large-scale surveillance programs.

Posted in: Congress, Extras, Legal Research, Legislative