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Congress trashes your privacy

AJC.com | August 22, 2007

It's been a little over two weeks since Congress, rushing to get out of town for its August recess, greatly expanded the power of the Bush administration to conduct surreptitious surveillance of Americans' international calls and e-mails.

While we have no idea how many such transmissions have in fact been monitored, the universe of such communications is vast, as is the government's ability and now its legal authority to intercept, gather and retain such data. Given the administration's propensity to gather as much information on as many people as possible and sort it out later, it is reasonable and prudent to conclude the number of communications already gathered and retained is extremely large.

It therefore appears timely for Americans to understand just a little bit about how extensive this new power granted the administration really is.

Spokesmen for the Bush administration, including the president himself, in the lead up to the recent precipitous congressional action amending and expanding the Foreign Intelligence Surveillance Act, repeatedly claimed that its efforts were designed simply to "update" the 30-year-old law. As usual, however, the remedy went far beyond that which might have been reasonably necessary. The administration claimed also that the targets of the expanded power were only to be those persons who were themselves suspected terrorists or were communicating with known or suspected terrorists. This assertion was simply false.

There was a need to modernize certain of the technical provisions in FISA. For example, there was a recent interpretation by a court that calls sent by modern routing mechanisms through the U.S. even though both parties were located abroad required a court order, because the routing alone subjected them to the warrant provisions of the law. But such matters could easily have been handled without dramatically altering the scope of the law.

Instead of simply doing what it said publicly it needed to do that is, a technical fix to the law to bring its provisions in line with 21st-century communications technology the administration played on congressional fears and ignorance of the law to ram through an expansion of the law's reach that made virtually every international call or e-mail subject to monitoring. This essentially gutted any oversight by the courts.

Previously and consistent with Fourth Amendment provisions protecting phone calls and e-mails by U.S. citizens in this country from government surveillance absent either an emergency or the government showing it had a good reason to invade one's privacy and listen in to one's conversations the government had to first secure a warrant.

This position was so well-established and universally accepted that Gen. Mike Hayden, former head of the National Security Agency and now CIA director, testified before Congress in April 2000 that in every instance in which the government wished to surveil a citizen's phone calls if the citizen was in this country, the government had to and did secure a warrant.

Thanks to the fact that a majority of members of Congress apparently cared more for starting their August recess on time than for protecting the Fourth Amendment-based privacy rights of the citizens they represent, this administration now is able to intercept any telephone or e-mail communication by anyone in this country, based on nothing more than an assertion that it believes one of the parties is overseas. No evidence or belief that one party to such conversations is a known or suspected terrorist the rationale for the legislation that the administration declared publicly is needed.

Despite such bipartisan clarity in the preamendment FISA law, we now know that this president decided in late 2001 to ignore this requirement of the law. He did not seek at the time to change it if he believed it to improperly limit his power as "commander in chief," but simply ignored it. Now, the Congress has given its blessing at least temporarily to Bush's violations of the old law. In so doing, it has subjected virtually every international call a person makes or e-mail anyone sends overseas to potential surveillance. The Congress did this by removing from the entire FISA mechanism and from any court oversight all calls, regardless of who makes them, if the government has reason to suspect that one of the parties is overseas. In other words, all international communications. The sweep of such power is indeed breathtaking. However, the Congress did get to leave for its August recess on time.

The good news in all this is that Congress incorporated a six-month sunset provision in the FISA amendments. Let's keep our fingers crossed that when it considers this law anew within the next half-year, Congress does so on a day other than the day before it wants to adjourn for a recess.

Former congressman and U.S. attorney Bob Barr practices law in Atlanta. Web site: www.bobbarr.org.


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