Before the Democratic-controlled Congress caved in on George W. Bush’s warrantless-wiretapping powers, White House lawyers slipped in two provisions to give the President even more authority – and less accountability – than he claimed on his own. And the U.S. press corps largely missed that part of the story.
U.S. news reports mostly parroted the White House claim that the law “modernizes” the Foreign Intelligence Surveillance of 1978 and “narrowly” targets overseas terror suspects who call or e-mail their contacts in the United States. But the “Protect America Act of 2007” actually casts the wiretapping net much wider.
The law applies not just to terror suspects abroad who might communicate with Americans at home, but to anyone who is “reasonably believed to be outside the United States” and who might possess “foreign intelligence information,” defined as anything that could be useful to U.S. foreign policy.
That means that almost any American engaged in international commerce or dealing with foreign issues – say, a businessman in touch with a foreign subsidiary or a U.S. reporter sending an overseas story back to his newspaper – is vulnerable to warrantless intercepts approved on the say-so of two Bush subordinates, Attorney General Alberto Gonzales and Director of National Intelligence Mike McConnell.
Beyond the breathtaking scope of this new authority, the Bush administration also snuck in a clause that grants immunity from lawsuits to communications service providers that comply with spying directives from Gonzales and McConnell.
Before the “Protect America Act” won final approval from Congress on Aug. 4 and was signed into law by Bush on Aug. 5, one of the few safeguards against Bush’s warrantless wiretaps was the concern among service providers that they might be sued by customers for handing over constitutionally protected information without a warrant.
Compromise Talks
In earlier Capitol Hill discussions of a compromise bill, the administration reportedly had agreed to delete this immunity provision for service providers. However, when negotiations broke down – and Bush made clear he would accuse the Democrats of endangering the nation’s safety – Republicans put an immunity clause back into the final bill.
Then, in the chaotic hours before Congress left for its August recess, Democratic leaders allowed the Republican-authored bill to be rushed through the Senate and the House with centrist Democratic votes ensuring passage.
Though getting almost no attention in the U.S. press coverage, the immunity paragraph reads: “Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.”
In other words, U.S. citizens, who believe that warrantless surveillance has violated their Fourth Amendment rights against unreasonable search and seizure, will have no legal recourse against the service provider that collaborated with the government.
This immunity provision is important, too, because the only meaningful safeguard against abuse of the new spying power was that service providers could challenge a wiretap directive through a secret court proceeding.
That process already was weighted heavily in the Bush administration’s favor since the service provider would not know the classified basis for the wiretap directive. That evidence only would be shared ex parte in a secret conference between administration lawyers and the judge.
So, the service provider would have to file a costly lawsuit on behalf of an unknowing customer who might or might not be a legitimate target of government surveillance. In filing the suit, the service provider also risked angering the U.S. government, which often is a major customer with the same service provider.
Now, the new law tilts the scales even further, making the warrantless surveillance legally cost free for a collaborating service provider.
These two features – the expansive wiretap coverage and the immunity provision for service providers – were cited in our Aug. 5 article at Consortiumnews.com. [See “Bush Gets Spying Blank Check.”]
But most major U.S. news outlets, at least initially, followed the lead of the White House in describing the law’s goal as simply tinkering with an outdated law to permit warrantless surveillance of terror suspects communicating with each other overseas (if their conversation went through a U.S. switching station) or to some American.
Insider Stories
A week after the bill’s passage, however, the New York Times and the Washington Post published front-page stories explaining how the Bush administration had ambushed the Democrats and pushed through a more expansive law than earlier compromise versions, which had been discussed with congressional leaders.
The Times reported that in late July “the administration lowered its sights, slimming its original 66-page proposal to 11 pages and eliminating some of the controversial plans like broad immunity from lawsuits for telecommunications companies that aided the eavesdropping. …
“By Aug. 2, the two sides seemed relatively close to a deal. Mr. McConnell had agreed to some increased role for the secret [Foreign Intelligence Surveillance] court, a step that the administration considered a major concession, the White House and congressional leaders said.
“But that night, the talks broke down. With time running out, the Senate approved a Republican bill … omitting the stronger court oversight” and other “compromises hashed out over the previous few days.” Pressed up against the start of an August recess, the House followed suit. [NYT, Aug. 11, 2007]
In its account, the Washington Post reported that McConnell had objected to Democratic attempts to limit the new surveillance powers to cases in which the overseas communications involved at least one person suspected of terrorism.
“McConnell wanted no such limits,” the Post wrote. “‘All foreign intelligence’ targets in touch with Americans on any topic of interest should be fair game for U.S. spying, he said.” [Washington Post, Aug. 12, 2007]
In other words, the law’s broad language was not an accident; it was intentional and substantive. The Bush administration’s goal was to scoop up any information that might be interesting to the intelligence community, not just what was needed to protect the nation from a terrorist attack.
It’s also unclear what restrictions apply to the year-long surveillance directives if the target enters – or reenters – the United States. Under the law as written, there’s no indication that the service provider must be notified that the 12-month order should be suspended if the target steps onto U.S. territory.
Conceivably, therefore, a directive aimed at an American traveling overseas might stay in effect after the target returned home, with the service provider continuing to give the National Security Agency access to the target’s phone calls and e-mails.
Angry Base
The Democratic congressional cave-in provoked an uproar among rank-and-file Democrats. House Speaker Nancy Pelosi’s office reported receiving more than 200,000 angry e-mails. Stung by the reaction, Democratic leaders promised that the spying law will be revisited in September, rather than waiting around for a required reauthorization in February 2008.
But the Democrats will face the same dilemma that has stymied their attempts to force an end to the Iraq War. The Republicans will be in the driver’s seat because they can filibuster a bill in the Senate, forcing the Democrats to round up 60 votes. Even if a new bill is passed, Bush can veto it, requiring two-thirds majorities in both houses to override.
When the surveillance law expires in February 2008, Republicans will have the leverage of an election year to again frighten Democrats with taunts of “soft on terror.”
The Bush administration also has made clear that it will seek an even more advantageous version, including an amnesty provision that would void lawsuits already filed against service providers “who are alleged to have assisted our Nation following the attacks of Sept. 11, 2001,” according to a White House fact sheet.
With the fear card still working on congressional Democrats, President Bush retains hope that he can advance his goal of an all-powerful Commander in Chief, despite political reversals and low opinion polls.
Even with the Democrats in control of the House and Senate, very little appears to have changed in Washington.
[For a fuller examination of Bush’s dark vision, see our new book, Neck Deep: The Disastrous Presidency of George W. Bush.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there.