I don’t get it. All summer we listened to incoherent testimony from the Attorney General of the United States. Alberto “prohibitions against torture are quaint” Gonzales, the guy who believes “there is no express grant of habeas in the Constitution,” had tried to bully a near-comatose John Ashcroft into OK-ing a secret warrantless wiretapping program that illegally spied on citizens. Gonzales’s general uncooperativeness was so great that there was loud Congressional discussion of censure or even impeachment.
Yet here we are, only a few weeks after all the brouhaha about his fronting for President Bush’s pursuit of an ever more secretive unitary executive–and Congress passes a law that legalizes precisely the kind of warrantless wiretapping the Bush Administration, through Gonzales, was seeking. The Protect America Act of 2007, or Section 1927 of the Foreign Intelligence Surveillance Act (FISA), starts with a clever limitation of the meaning of “electronic surveillance.” To provide a little background, “electronic surveillance” has always been characterized as a domestic police power that requires a warrant issued by a court in order to protect the privacy interests of citizens. Foreign intelligence gathering, on the other hand, is not covered by FISA–i.e., no warrant necessary–the underlying rationale being that noncitizens who are threats to national security need not be accorded a right to privacy. This general objective is controversial, but let’s allow that it is reasonable enough as an overarching proposition. The new law, by contrast, effectively removes the expectation of rights distinguishing citizens from noncitizens, as well as collapses the wall between the furtive functions of foreign intelligence gathering and the public accountability constitutionally mandated in domestic law enforcement.
The problem the law ostensibly seeks to address is that many of the fiber-optics nodes through which global telecommunications flow are located here in the United States. Should we require a warrant to monitor parties located outside the country whose text messages pass through a phone center in California? This is an interesting legal issue, but the pressing conundrum raised by the breadth of Section 1927 is whether the realities of modern technology require American citizens to forsake any expectations of privacy as a consequence. Some would say yes. In an op-ed in the Los Angeles Times, David Rivkin Jr. and Lee Casey, former Justice Department officials under Reagan and Bush I, argue: “Our privacy is compromised daily by government and nongovernment actors. This is the price of living in a modern society. The real question is how to strike the balance. Americans may, for example, be subject to physical search without a warrant or judicial oversight whenever they leave or enter the United States. The same should apply to electronic communications coming into or going out of the United States; they should not be subject to a more stringent rule.”