Revolution #99, August 26, 2007
In the Name of “Protect America”… A Big Step Towards POLICE STATE America
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In December 2005, leaks to the media revealed the existence of a secret and illegal wiretapping operation by Bush's National Security Agency (NSA) that spied on telephone calls, emails, and other communications by people in the U.S. without warrants. Al Gore declared that Bush "has been breaking the law—repeatedly and insistently.” Democratic Senator Russell Feingold said Bush should be "censured" by Congress. Republican Senator Arlen Specter called for a full investigation.
Less than two years later, on August 5, Congress passed a law pushed by the Bush regime that not only legalizes NSA's warrantless wiretapping but vastly expands the scope of targets that the government can legally spy on without court approval. The new law is officially named the “Protect America Act of 2007.” The American Civil Liberties Union (ACLU), which calls the new law the "Police America Act," says that it "gives the NSA a blank check to wiretap Americans without judicial oversight." (ACLU fact sheet at aclu.org)
The NSA Spying Program
The new law is an amendment to the Foreign Intelligence Surveillance Act (FISA) passed by Congress in 1978 after widespread exposure in the mid-1970s of rampant government wiretapping, break-ins, and dirty tricks. FISA gave free rein to the intelligence agencies to carry out surveillance on foreign governments and foreign "agents"—but it put some formal limits on the wiretapping of "U.S. persons" (citizens and legal residents), requiring the intelligence agencies to get a warrant from the FISA court for such surveillance.
The FISA "restrictions" on wiretapping were never about protecting the privacy and rights of the people. In 2004, for example, the government requested 1,758 wiretaps under FISA. Not a single one was denied. And FISA allows the government to begin surveillance and then get approval from the secret court later.
But the Bush regime decided in secret that even FISA and its court—which operates in secret and rubber stamps requests from law enforcement to spy on people in the U.S.—was way too restricting on how much the government could snoop into your phone calls and email. Immediately after 9/11, the Bush White House started a NSA wiretapping program that totally bypassed FISA.
Today, most international electronic communications to and from the U.S.—as well as a lot of calls and internet traffic between locations outside the U.S.—are routed through giant telecommunication switches located in the U.S. Under the NSA program, the government eavesdrops by "latching on" to these switches operated by U.S. companies like AT&T that handle a huge amount of calls and emails each day. Since a lot of the data going through those switches involves people in the U.S., NSA wiretaps also spy on people in the U.S. Until now, this had been a violation of FISA.
When the NSA program came out into the open, the Bush regime defended it by saying that warrantless surveillance was within presidential "war-time" powers and that any wiretapping involving people in the U.S. was targeted at Al Qaeda and other terrorists. Attorney General Alberto Gonzales, appearing before a Congressional committee, declared, "As the President has said, if you're talking to Al Qaeda, we want to know it."
Overruling the FISA Rubber Stamp
The NSA's spying operation apparently ran into a snag earlier this year. The New York Times reported (8/6/07) that telecommunications companies "facing major lawsuits for having secretly cooperated with the warrantless wiretapping program…now wanted greater legal protections before cooperating further." In response, this January the Bush administration "subjected [the NSA program] for the first time to the scrutiny of the FISA court."
Then in May, according to a Washington Post article (8/12/07), a FISA court judge ruled that "the law's wording required the government to get a warrant" whenever the wiretapping might involve people in the U.S. The Post reported that "The decision had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber [optic cable] on U.S. soil." The New York Times said that the change "swamped the court with an enormous volume of search warrant applications." The White House dispatched Director of National Intelligence Mike McConnell to meet directly with the FISA judges to get them to reverse the decision, but he was unsuccessful. It seems the NSA warrantless wiretapping was too much even for the pliant FISA court!
The fact that the FISA court was "swamped" with NSA wiretapping requests is itself an exposure of the broad extent of the surveillance that was being carried out. And now, with the new law, the Bush regime is moving to spy without even the limited restrictions and paper trail involved in the FISA process.
Repressive Leaps in the New Law
Steven Aftergood, an intelligence policy analyst at the Federation of American Scientists, pointed to three ways in which the new law is a leap in the government's repressive powers: "It expands the surveillance program beyond terrorism to encompass foreign intelligence. It permits the monitoring of communications of a U.S. person as long as he or she is not the primary target. And it effectively removes judicial supervision of the surveillance process." (Quoted in Los Angeles Times, 8/7/07) Let's look at each point:
1) Expanding the spying program to cover "foreign intelligence" in general: Bush officials had previously justified the NSA's warrantless wiretapping by saying that they were targeting foreign "terrorist" groups and anyone associated with them. But with the new law, the NSA can spy on anyone and any group overseas—as long as the surveillance is (under the language of the law) "directed at a person reasonably believed to be located outside the United States" for the purpose of "foreign intelligence." This is a much wider category.
2) Permitting spying without warrants on "U.S. persons": The new law enables the government to eavesdrop on international calls and emails of people in the U.S. Writing on the legal affairs blog “Balkinization,” Georgetown University law professor Marty Lederman notes that the law allows warrantless wiretapping "even if the surveillance picks up communications of U.S. persons here in the States—indeed, even if the surveillance is in part designed to intercept U.S. communications, so long as it is also 'directed at' someone overseas.” The Center for National Security Studies (CNSS), a civil liberties group, wrote in their analysis of the law that “this approach would also permit the surveillance of countless Americans traveling, working, or fighting in the armed services abroad.”
3) Removing oversight by courts: The new law has provisions for review of the NSA surveillance by the FISA court. But the court will not look at individual cases—it will only review the procedure used to determine whether the targets are "reasonably believed" to be outside the U.S. The ACLU notes that the new law "does not require the AG [Attorney General] to explain how it treats Americans’ calls or emails when they are intercepted. The court will have no information about how extensive the breach of American privacy is, nor the authority to remedy it."
The new law also gives the Attorney General and the Director of National Intelligence the ability to order communication service providers to cooperate with federal wiretapping operations, and the law threatens those companies with penalties if they don't comply. At the same time, the law promises those companies immunity from lawsuits for taking part in NSA spying.
A federal appellate court in San Francisco is now hearing two suits challenging NSA warrantless surveillance. The Electronic Frontier Foundation (EFF) is involved in one suit. They represent AT&T customers who brought a class action suit against the telecommunications company for assisting the NSA in illegally snooping on their calls. The NSA program involved here is another program that the Bush regime hasn’t admitted exists—which reportedly collects records of all domestic phone calls from three of the biggest phone carriers in the country. Information for the suit was provided to the EFF by a former AT&T employee. The other suit says that the NSA warantless spying program illegally wiretapped calls between an Islamic charity and its lawyers. A representative of the EFF told Revolution that their position is that the new law is not retroactive and does not affect the suits which have to do with surveillance taking place over the past few years. The U.S. government is arguing that the suits should be dismissed in order to protect "state secrets.”
And the Democrats?
Many Democrats in the Congress backed Bush's new law. Others--including all the Democratic presidential candidates—voted against it. But the leaders of the Democratic Party knew the law had the votes to pass and made no extraordinary parliamentary moves (like a filibuster) to stop it, even though House Speaker Nancy Pelosi said the law "does violence to the Constitution."
Many people in the social base of the Democratic Party are bitter and feel betrayed. There was a flood of angry posts on pro-Democratic blogs, and Pelosi got more than 200,000 protest emails.
Breaking Out of the Road to Horror
The logic that the government needs more power to massively snoop into and spy on every detail of people’s lives to provide for their "safety" is a logic that leads to a police state. And it feeds into the logic that the way for Americans to live in “security” is more torture chambers. It leads to more banning of dissent—the same AT&T that is routing your phone calls to the government last week censored the words “George Bush, leave the world alone” out of the internet broadcast of a Pearl Jam concert. And this “security” through repression is connected to the logic that Americans’ “safety” depends on a more aggressive “war on terror” inside and outside the U.S.
Endless war and fascist repression do not make you safe. And the wars, torture, and other crimes of the U.S. rulers bring terrible suffering to the people of the world. Craig Murray, who got fired as British ambassador to Uzbekistan after speaking out against brutal torture used there by the U.S.’s “Coalition of the Willing”—declared, “I’d rather die than have someone tortured to save my life.”
As the Call from World Can't Wait (worldcantwait.org) says, "That which you do not resist and mobilize to stop, you will learn—or be forced—to accept."
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