Americans learned last week that, whatever the law says, they shouldn’t assume that their private communications are private. It was a big week for Big Brother, with but a single, small ray of hope at week’s end.
– The Wall Street Journal reported Monday that the National Security Agency, which is supposed to spy only on foreign targets, now “monitors huge volumes of records of domestic e-mails and Internet searches as well as bank transfers, credit card transactions, travel and telephone records.” The NSA has created, in effect, a back-door version of the controversial “Total Information Awareness” program that Congress thought it killed in 2003.
– The Boston Globe reported Friday that last month President George W. Bush quietly changed the rules governing the authority of the President’s Foreign Intelligence Advisory Board. The board, a group of private citizens, is supposed to provide oversight of intelligence agencies. In an executive order issued Feb. 29, Mr. Bush stripped the board of its power to report suspected unlawful activity to the Justice Department. So if the intelligence agencies are doing something illegal, they’ll just have to turn themselves in.
– On Friday afternoon, the U.S. House of Representatives passed an extension of the so-called Protect America Act that will allow the warrantless surveillance program to continue. But Mr. Bush, who says the program is essential to the nation’s security, has threatened to veto the bill anyway if it reaches his desk because it doesn’t grant immunity to telecommunications companies for any illegal acts they already committed in cooperating with the government. The Senate version of the bill does. The House version also would set up an independent commission to investigate the surveillance program, an absolutely splendid idea.
Mr. Bush’s actions stem from Vice President Dick Cheney’s belief that the executive branch gave up too much of its inherent power in the post-Watergate reform era. When the president acts as commander in chief in the war against terrorism, the specious Cheney theory goes, there are no limits to his executive authority.
So after 9/11, Mr. Bush authorized the NSA to ignore certain provisions of the 1978 Foreign Intelligence Surveillance Act. They no longer had to seek warrants from special FISA judges to eavesdrop on suspected terrorists in this country. The NSA, with the cooperation of U.S. telecommunications companies, began mining electronic communications through computers and telephone switching stations in the United States.
After The New York Times revealed the warrantless wiretapping program, and the fact that communications involving U.S. citizens were being caught in the NSA’s drift net, Mr. Bush belatedly went to Congress and got permission to do what he’d already been doing. Under intense White House pressure, Congress last year passed the Protect America Act, a revision of the 1978 FISA act, but put a six-month expiration date on it. The law expired Feb. 17.
Since then, the battle to renew it has focused mainly on the provision to give telecom companies a free pass for any past bad acts. Some 38 pending lawsuits were filed by citizens who are angry that the companies gave up their private communications without valid warrants ordering them to do so. The administration argues that allowing the lawsuits to proceed would endanger national security and adds that it would make lawyers rich. Critics suggest that the administration is more worried that the lawsuits will reveal the flimsy legal pretexts used to justify spying on citizens without first getting court warrants.
Mr. Bush says the expiration of the law three weeks ago has made the country less safe. But he and his supporters consistently have refused to cite specific instances in which the law has resulted in credible intelligence against actual threats. It’s one of those “we could tell you, but then we’d have to kill you” kind of things.
Mr. Bush has substituted fear-mongering for facts, even as he weakens his own watchdogs and allows the NSA to cast its electronic nets farther and wider. The Senate, worried about “soft on terrorism” charges in the fall election, caved under the pressure. To their credit, most House Democrats and a few Republicans held firm.
They must continue to do so in negotiations with the Senate and in the face of Mr. Bush’s veto threat. In this instance, gridlock is not a bad thing. If, between now and the November elections, intelligence agencies have to get judicial warrants to do their spying, so much the better.