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.