On the eve of Alberto Gonzales’ testimony before Congress about his deep involvement in US Attorneygate, the Bush Administration has the gall to propose a bill which would greatly expand its ability to intercept telephone calls and e-mail correspondence as well as provide immunity to participating telecom companies. The bill would do far more damage to our right to privacy than many in the mainstream media are reporting.
According to the New York Times, Democratic leaders “reacted cautiously” to the White House proposal. (Even though “they have become increasingly concerned by disclosures of abuses in other data collection programs.”) But is this a time for caution in dealing with this White House and its cronies? It’s a time for spine, mettle, and moxie. The question that all small-d democrats need to ask themselves is this: are you a defender or a subverter of our Constitution?
The telecom immunity (with impunity!) provision of this should-be-dead-on-arrival proposal is easy to address. In opposing the measure, even Republican Senator Arlen Specter told The Times, “That provision is a pig in the poke. There has never been a statement from the Administration as to what these companies have done. That’s been an intolerable situation.”
As for White House claims that it is simply trying to “modernize” the Foreign Intelligence Surveillance Act (FISA) – there is a clear record of FISA providing both the oversight needed to guard against executive abuse and meeting our nation’s national security needs.
As Elizabeth Holtzman noted in a Nation cover story, “Since 1978, when the law was enacted, more than 10,000 national security warrants have been approved by the FISA court; only four have been turned down.”
And Caroline Fredrickson, Director of the ACLU Washington Legislative Office, and Legislative Counsel Timothy Sparapani, wrote in a letter to the Senate Select Committee on Intelligence: “… the Administration has not publicly provided Congress with a single example of how current standards in FISA have either prevented the intelligence community from using new technologies or proven unworkable for the personnel tasked with following them.” Frederickson concluded in a statement, “FISA has been constantly violated since President Bush authorized warrantless wiretapping and data mining of Americans by the National Security Agency in 2001. Congress shouldn’t reward a president who continuously disregards the rule of law. FISA has already been amended numerous times. It doesn’t need to be ‘modernized,’ it needs to be followed.” Mike German, Policy Counsel, adds, “This proposal doesn’t ‘modernize’ FISA. It guts it.”
What is most frightening about the Bush proposal is that although the Administration claims – and many in the mainstream media are reporting – that the plans are an effort at modernization and increasing the monitoring of targeted foreign persons (which is troubling enough), it’s really about increasing surveillance of Americans too, according to Mike German.
By changing the definition of “electronic surveillance”, the Administration would be able to exempt all international phone calls from the warrant requirement. The same holds true for e-mails. The government wouldn’t have to go to the FISA Court long unless it knew that “the sender and all intended recipients are located within” the US. Any e-mail routed through a foreign country could be fair game. So, for example, if AOL routes an email originating in Washington, DC to a recipient in San Francisco – via Canada – the government could mine the content of that email. (Of course, cooperating telecom companies would be protected with immunity.) And let’s say the government just happened to grab some of this information in violation of the law…. currently it is required to destroy it. The new proposal allows the government to “keep material that they improperly took by accident,” German says.
Just as Gonzales was a key player in creating and defending warrantless wiretaps to spy on Americans; stripping habeas corpus rights and weakening our commitment to the Geneva Convention; politicizing the civil rights division at his Department of (In)Justice… no doubt he will offer his unabashed support for the Administration’s latest proposal to expand domestic spying, weaken oversight, and rollback the checks and balances of our system to create an unfettered Executive. The contempt for our Constitution is clear, and the pattern of abuse is consistent with what former Nightline anchor Ted Koppel recently warned happens “when a regime places a higher value on ideological loyalty than it does on honesty or creativity or even efficiency.”
FISA needs to be strengthened, not weakened. Gonzales needs to resign – he has no credibility as our top law enforcement official. And investigations need to be held to determine the telecom role during five years of illegal domestic spying.
There is only one bright side to this latest chapter of madness in the long insanity of the Bush Administration. It raises another opportunity for sane political leaders and pro-democracy patriots to push back and answer this fundamental question: are we a nation of laws or do we bend to the partisan rule of a few men?