The US government now has greater authority to eavesdrop without warrants on American citizens' telephone calls and e-mails after President Bush signed new surveillance legislation into law on Sunday. Authored largely by the White House, the new law, officials say, provides a legal framework for warrantless monitoring that was already being conducted by the National Security Agency outside of the 1978 Foreign Intelligence Surveillance Act (FISA). Many Democrats and civil rights activists argue that this new law erodes fundamental American liberties and privacy rights. Supporters contend that it's vital to fend off potential terrorist attacks.
Under FISA, which has been amended at least eight times since 2001, a secret national security court issued the necessary warrants for various government offices to conduct wiretaps and other surveillance in the US, reports The Baltimore Sun. Under the new law, provided that the government is targeting a foreigner talking to a US citizen, no warrant is needed.
The change in the law was, in part, a response to the 2005 revelation of a program monitoring conversations without a warrant between foreigners and the United States that were believed to have a connection to al-Qaida. President Bush reluctantly agreed earlier this year to obtain a warrant from the secret court for what Bush now calls the Terrorist Surveillance Program. But the administration had since sought to reduce the role of the court in the process.
The new law expands the eavesdropping powers Bush claimed he had the right to exercise with his Terrorist Surveillance Program in two major ways, reports The Boston Globe.
First, the law requires telecommunications companies to make their facilities available for government wiretaps, and it grants them immunity from lawsuits for complying. Under the old program, such companies participated only voluntarily – and some were sued for allegedly violating their customers' privacy.
Second, Bush has said his original surveillance program was restricted to calls and e-mails involving a suspected terrorist, but the new law has no such limit. Instead, it allows executive-branch agencies to conduct oversight-free surveillance of all international calls and e-mails, including those with Americans on the line, with the sole requirement that the intelligence-gathering is "directed at a person reasonably believed to be located outside the United States." There is no requirement that either caller be a suspected terrorist, spy, or criminal.
Although the new law potentially allows the government to listen in on conversations of Americans calling from overseas (e.g., an American in Paris calling an American in Chicago), White House officials emphasized that the program is directed at foreign suspects, not Americans, reports The New York Times. "It's foreign, that's the point," Tony Fratto, a White House spokesman said. "What you want to make sure is that you are getting the foreign target." The law will expire in six months and changes the oversight and regulation process for government monitoring.
The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court's only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.
Although a number of Democrats in the House of Representatives had doubts about the new law, they caved under threats from the president to force congressmen to stay in session until they created a version of the law to which he could agree. Still, the British Broadcasting Corp. reports that many Democrats spoke out strongly against the law.
"This bill would grant the attorney general the ability to wiretap anybody, any place, any time without court review, without any checks and balances," said Democratic Rep. Zoe Lofgren during the debate preceding the vote.
"I think this unwarranted, unprecedented measure would simply eviscerate the 4th Amendment" of the U.S. Constitution, which prohibits unreasonable searches and seizures.
Just an hour after the House voted on the Legislation last Saturday, Speaker of the House Nancy Pelosi (D-Calif.) sent a letter to the Judiciary and Intelligence committees asking them to respond to the new legislation by addressing its "many deficiencies," reports The Congressional Quarterly.
"Many provisions of this legislation are unacceptable, and although the bill has a six month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken," Pelosi, D-Calif., wrote to Judiciary Chairman John Conyers Jr., D-Mich., and Intelligence Chairman Silvestre Reyes, D-Texas.
Government officials are apparently unhappy that details of the wiretapping program were leaked to the public. The Federal Bureau of Investigation has launched an investigation to discover who leaked details to the media, reports Newsweek. Agents searched Thomas M. Tamm's house and confiscated three computers. Mr. Tamm formerly worked in the secret Justice Department office that oversees surveillance of terrorists and espionage targets.
A veteran federal prosecutor who left DOJ last year, Tamm worked at OIPR [Office of Intelligence Policy and Review] during a critical period in 2004 when senior Justice officials first strongly objected to the surveillance program. Those protests led to a crisis that March when, according to recent Senate testimony, then A.G. John Ashcroft, FBI Director Robert Mueller and others threatened to resign, prompting Bush to scale the program back. Tamm, said one of the legal sources, had shared concerns about he program's legality, but it was unclear whether he actively participated in the internal DOJ protest.
The FBI raid on Tamm's home comes when Gonzales himself is facing criticism for allegedly misleading Congress by denying there had been "serious disagreement" within Justice about the surveillance program. The A.G. last week apologized for "creating confusion," but Senate Judiciary Committee chair Sen. Patrick Leahy said he is weighing asking Justice's inspector general to review Gonzales's testimony.