When New York Times journalists James Risen and Eric Lichtblau revealed, on December 16, 2005, that the Bush administration was secretly wiretapping Americans without a warrant, it caused a scandal. Outraged commentary ensued. Lawsuits were filed. An attempt to renew the Patriot Act was met with a filibuster.
But seven years later, the government not only continues to collect Americans’ communications (including e-mail) without a warrant; it has largely gutted the law designed to protect against such abuses. The 1978 Foreign Intelligence Surveillance Act (FISA), passed in response to domestic spying on activists, sought to require the government to obtain a warrant before wiretapping Americans. Today the law is all but extinct, thanks to the 2007 Protect America Act and the 2008 FISA Amendments Act, which legalized—and expanded—much of what the Bush administration had been doing illegally. The FAA even granted retroactive immunity to telecommunications firms that illegally wiretapped Americans—in large part because then-candidate Barack Obama changed his stance to support such a move, vowing to address the matter as president (he has not).
The FISA court—a secret court whose opinions have been published only a handful of times—still reviews surveillance orders, but its powers have been curtailed. Although the government presumably cannot directly target Americans for spying, today it has nearly unrestrained authority to eavesdrop on those who communicate with people outside the country. The government doesn’t even need to show that these foreign targets are terrorists or that the conversations center around a plot. This means any international communication may be subject to wiretapping.
The FISA court has held on at least one occasion that the wiretap program violates the Fourth Amendment and the spirit of the FISA law. Yet the government refuses to release the opinions that might describe these violations. More recently, the Justice Department’s inspector general completed an audit tracking how many reports that include Americans’ names get circulated based on this program. But the IG refuses to release its findings.
At press time, Congress is poised to reauthorize the FAA for up to five years, even though many parts of the wiretapping program remain secret. Oregon Senator Ron Wyden—one of a few Congress members trying to amend the act before it is reauthorized—has strongly suggested that the program allows “warrantless searches for Americans’ communications.” In response, intelligence officials have issued denials wrapped in wordplay; terms like “targeting,” “querying,” “collection” and “minimization” have been twisted to obscure how the program really works.
Even the congressional intelligence committees remain ignorant about a key point: early in 2012, when Wyden asked the National Security Agency how many Americans’ communications had been collected or reviewed under the program, the NSA inspector general responded that it was “beyond the capacity of his office” to determine the number, and that trying to do so would “violate the privacy” of Americans.
Our privacy is faring no better in the courts. Though the Supreme Court has recently shown willingness to hear challenges to the current program—during oral arguments in October, the justices seemed receptive to claims brought on behalf of The Nation, Chris Hedges, Naomi Klein and others—this is a far cry from declaring it illegal. Over the past few years, a series of lawsuits charging violations of FISA have been defeated. The government has successfully argued that plaintiffs couldn’t prove they had been illegally wiretapped because such proof is a state secret.
Until recently, the sole exception was a case brought by a now-defunct Muslim charity, al-Haramain. In 2004, while litigating its classification as a terrorist organization, it obtained a log that appeared to show the taping of conversations between its lawyers and contacts overseas. It wasn’t until the wiretapping program was exposed the following year that its lawyers understood the significance of the log. When al-Haramain tried to sue the government for its illegal spying, the Bush administration declared the log a state secret. But years later, a district court held that al-Haramain had sufficient proof of the surveillance against it, even without the log (in part, because an FBI official had bragged about spying on the group). It ruled in favor of the charity and ordered the government to pay a small fine.
But the Obama administration appealed that decision, and in August the purportedly liberal Court of Appeals for the Ninth Circuit ruled that so long as the government didn’t actually use evidence collected illegally in some kind of proceeding, it could not be held liable. This decision was upheld on December 5. The outcome in the al-Haramain case makes it inconceivable that the government will ever pay for its illegal wiretapping program. And the rush to reauthorize the FAA suggests that Congress has little interest in reining it in.
Back when he was rolling out this secret program, Dick Cheney’s counsel, David Addington, reportedly enthused, “We’re one bomb away from getting rid of that obnoxious” law. Sadly, FISA’s intent couldn’t withstand the politics of fear, much less a bomb. The government still conducts its warrantless wiretapping in secret. But that’s just to prevent us from knowing what it’s doing. It no longer needs to fear the law.
In “Checking Big Brother” (Nov. 2), David Cole reports on efforts to challenge the the FISA Amendments Act of 2008, ” the most expansive authority Congress has ever given the government to intercept Americans’ international phone calls and e-mails.”