Bad Connection

Since 9/11, Congress has acceded to nearly every administration demand when it came to weighing civil liberties against intelligence-gathering in the “war on terror.” Last month the House of Representatives finally said no.

Following the February expiration of the Protect America Act, a temporary surveillance law enacted last summer, the Bush administration favored a Senate bill giving intelligence agencies broad leeway to eavesdrop without court authorization—so-called warrantless wiretapping—while providing retroactive legal immunity to telecommunications companies that participated in such programs after 9/11. These measures are highly controversial, but President George W. Bush weighed in with typical self-assurance. “The American people understand the stakes of this struggle,” he asserted. “They want their children to be safe from terror.” Failure to pass the Senate bill, he warned, would “undermine America’s security.” But House Democrats were not persuaded. In a rare display of pugnacity, the House passed a bill rejecting both warrantless domestic wiretapping and immunity for the telecoms. President Bush promises a veto.

The legal crux of the conflict centers on the 1978 Foreign Intelligence Surveillance Act (FISA), which governs the physical and electronic monitoring of foreign powers in U.S. territory, including terrorist groups and their communications to and from the United States. Created in response to abuses committed under the Nixon administration, FISA set up a system of secret courts to authorize surveillance. In fact, the act gave intelligence agencies a lot of scope, allowing surveillance of foreigners for up to one year without a court warrant, and of U.S. citizens for up to seventy-two hours.

Yet even such modest controls are too onerous for the Bush administration, which has sought to let its $1-billion spy apparatus operate without judicial oversight. As first reported by the New York Times in 2005, after 9/11, the National Security Agency (NSA), whose charter limits it to foreign-intelligence gathering, was secretly granted unprecedented power to spy inside the United States without court orders, provided the snooping was carried out in pursuit of terrorists. The NSA now operates the largest domestic-surveillance program in U.S. history, a gigantic data-mining effort that monitors, collects, and analyzes phone calls, e-mails, Internet browsing history and searches, bank records, financial transactions, and travel records.

From the outset, warrantless surveillance sparked controversy even within the Bush administration. FBI Director Robert Mueller raised questions about its legal basis (he later deferred to the Justice Department), while at Justice itself, several top officials, including then Attorney General John Ashcroft, threatened to resign if the program was not changed. Today, the impending presidential election and the plummeting popularity of George W. Bush have emboldened Democrats and focused public scrutiny on the danger being posed to civil liberties.

Do the telecoms deserve retroactive immunity from dozens of lawsuits that have been filed against them? The administration argues that only immunity can ensure future cooperation. “Companies that may have helped us save lives should be thanked for their patriotic service, not subjected to billion-dollar lawsuits that will make them less willing to help in the future,” the president said in March. There are two problems with this argument. First, if telecoms have broken the law, they should not be rewarded for doing so. (Notably, Qwest CEO Joseph P. Nacchio questioned the legality of complying with the government’s requests, and refused to do so.) Second, under FISA, telecoms are already immune from prosecution, so long as they have a sworn letter from the attorney general stating the surveillance is not likely to obtain the contents of a U.S. person’s communication. But the administration claims that such authorization letters are themselves state secrets, too sensitive for federal judges to review—even in private—and won’t allow the companies to reveal them.

Rejecting these arguments, the House would give plaintiffs their day in court. This is as it should be. One can legitimately question the appropriateness of using lawsuits to settle what is at root a separation-of-powers argument. But given a supine Congress, such lawsuits may be the only tool the public possesses for prying the truth from a secretive administration. Democracy requires transparency. It may be that President Bush opposes the House bill not because it curtails the government’s domestic spying powers—in fact, it relaxes several of FISA’s restrictions—or because it might limit cooperation by the telecoms (which, after all, can be compelled), but because he wants to prevent us from learning the full extent of the government’s domestic spying in recent years. The lawsuits are less about punitive damages than about transparency. They raise yet another perplexing question for our post-9/11 society: How does the public gather information about the information-gatherers?

April 1, 2008