Politicians are once again debating the legality of the controversial "Protect America Act," which amended the Foreign Intelligence Surveillance Act (FISA) to allow for warrantless wiretapping. The law's Feb. 1, 2008 expiration date is approaching. President George Bush and his supporters are pushing to make the law permanent. Meanwhile, opponents are raising familiar concerns about the protection of civil liberties. On Thursday, J. Michael McConnell, director of national intelligence, testified before Congress that not only was the law a necessity, but that public debate about it will cost American lives by exposing American surveillance methods to the nation's enemies. Opponents in Congress were critical of Mr. McConnell's remarks.
On Wednesday, Bush visited the National Security Agency and called for support to make the Protect America Act a permanent law, reports the E-Commerce Times. The temporary act was rushed into law last month and allows US intelligence agencies to monitor phone conversations between US citizens calling suspected terrorists overseas.
"The threat from Al-Qaeda is not going to expire in 135 days," Bush warned during a Wednesday visit to the National Security Agency (NSA) in Fort Meade, Md.
"Unless the FISA reforms in the act are made permanent, our national security professionals will lose critical tools they need to protect our country," he said. "Without these tools, it'll be harder to figure out what our enemies are doing to train, recruit and infiltrate operatives in our country. Without these tools our country will be much more vulnerable to attack."
During his testimony to congress McConnell told representatives that "intelligence business is conducted in secret," and that public examination of these laws had compromised their effectiveness by exposing their inner-workings, reports the Los Angeles Times.
"It's conducted in secret for a reason," McConnell told the House Intelligence Committee. "You compromise sources and methods, and what this debate has allowed those who wish us harm to do is to understand significantly more about how we were targeting their communications."
Asked by Rep. Anna G. Eshoo (D-Calif.) if he thought that congressional questioning of the administration's intelligence program would lead to the killing of Americans, McConnell said, "Yes, ma'am, I do."
Eshoo called his assessment "a stretch."
Democrats also expressed that they want to give the administration the necessary tools to monitor foreign targets, they also want to ensure that checks and balances are maintained, reports the Congressional Quarterly. They also expressed particular concern about the portion of the law that allows for electronic surveillance of foreign terror suspects that results in warrantless wiretapping of US citizens within the country.
Panel Republicans and McConnell then tried to turn the tables on Democrats. They highlighted a case where they said spying restrictions in place prior to passage of the temporary six-month legislation had delayed for 12 hours an attempt to rescue U.S. soldiers captured by insurgents in Iraq.
The tense hearing demonstrated the frayed relations between congressional Democrats and McConnell going into the high-stakes negotiations about permanent changes to the Foreign Intelligence Surveillance Act (FISA, PL 95-511).
Responding to McConnell's anecdote about the 12-hour delay, Rep. Silvestre Reyes (D- Texas) said that it is "unclear if the new law would help," reports the Scripps Howard Foundation Wire. McConnell alleges that recent changes in telecommunications make it necessary to obtain more warrants than in the past.
"It gets back to the bureaucracy and the failure to recognize that American lives are at stake," he said. "I don't want to leave the perception that people were standing around because of the FISA."
A warrant had to be obtained to listen to Iraqi communications because they were being routed through communication systems in the United States, making the Fourth Amendment applicable, McConnell said.
In a press release, the American Civil Liberties Union (ACLU) contended that many of the reasons being used to justify the need for the warrantless wiretapping law are mere myths. The ACLU attacked two key justifications, among others, for warrantless wiretapping: that American will not be affected by the law and that FISA needed to be expanded because of new technologies. The ACLU also challenged McConnell's contention that without the law, bureaucracy made the wiretapping process ineffectually slow.
Myth: McConnell said that it takes 200 "man" hours to get a court order to access a telephone number.
Reality: The math, courtesy of Wired.com. "In 2006, the government filed 2,181 such applications with the Foreign Intelligence Surveillance court. The court approved 2,176 2006 FISA Warrant Applications. That means government employees spent 436,200 hours writing out foreign intelligence wiretaps in 2006. That's 53,275 workdays." The numbers have been greatly exaggerated. Also, in a June 2007 article in the Washington Post, Royce C. Lamberth, the presiding judge of FISC on 9-11 said he approved FISA warrants in minutes with only an oral briefing.
Even if it is merely a resource issue, there were and are bipartisan bills that would streamline the application process and grant more resources.
Besides, there is no "too-much-paperwork" exception to the Fourth Amendment.
Under the new law, private telecommunications firms that worked with the government to enable wiretapping and other surveillance methods are freed from any legal liability, reports CNET. Bush hopes to make this law a retroactive policy.
"It's particularly important for Congress to provide meaningful liability protection to those companies now facing multibillion-dollar lawsuits only because they are believed to have assisted in efforts to defend our nation, following the 9/11 attacks," Bush said.
The Electronic Frontier Foundation, which has sued AT&T over its allegedly illegal cooperation with the government, says references to the crippling liability posed by such suits suggest that the scope of the wiretapping is "massive."
"The statutory penalties for warrantless wiretapping are relatively small per person--even if AT&T was ordered to pay the maximum penalty, a few hundred illegal wiretaps would amount to less than a rounding error in the phone company's quarterly statements," EFF attorney Kurt Opsahl wrote in a recent blog entry. "If the NSA was truly limiting its spying to suspected terrorists, the potential liability would be like an annoying gnat on an elephant. So why are the companies so worried?"