Commentary

Limits on Eavesdropping Need to Stay

The Senate voted Feb. 12 to authorize warrantless domestic surveillance of Americans’ international phone calls and e-mails. Unlike the legislation the House passed in November, the Senate version allows the government to spy on its own citizens’ international communications without meaningful judicial oversight.

In 1976, a special Senate committee revealed massive abuses of power by the FBI, the National Security Agency and other government agencies. One notorious case was the FBI’s attempts to undermine and discredit Dr. Martin Luther King Jr. The bureau tapped King’s phones and bugged his hotel rooms. The FBI used the information in attempts to discredit King with churches, universities and the press.

FISA was carefully designed not to hamstring legitimate intelligence gathering.”

For three decades, the NSA obtained copies of virtually all telegrams to and from the United States without court oversight. The NSA also tapped international phone calls. From 1967-73, the NSA kept a “watchlist” of surveillance targets that included many Americans.

FISA was carefully designed not to hamstring legitimate intelligence gathering. FISA even allows the government to begin spying immediately and seek retroactive judicial approval within 72 hours. Most importantly, FISA left overseas surveillance activities completely exempt from judicial oversight.

But in early 2007, the FISA court reportedly ruled that a warrant is needed to intercept communications between two foreigners as those communications pass through the United States. Technological changes have made that an increasingly common occurrence, and the Bush administration seized on the ruling to justify the hasty passage of the Protect America Act. But this law went far beyond clarifying the foreign-to-foreign issue. In effect, it once again gave the NSA unfettered authority to intercept domestic-to-foreign communications without court supervision.

The Protect America Act was set to expire this past weekend, but the bill passed by the Senate would make its surveillance powers permanent.

The Senate also granted another item on the president’s wish list: retroactive immunity for telecom companies that participated in the government’s warrantless surveillance programs during the past seven years. Those companies are now facing customer lawsuits for violating their privacy, and the White House is doubtless worried that unless the suits are quashed, they could reveal embarrassing details about the NSA’s illegal activities.

But granting retroactive immunity would seriously jeopardize Americans’ privacy because it would leave telecom companies with no real incentive to stand up for their customers’ privacy the next time the government asks them to break the law. It would also be a slap in the face to those companies that risked the wrath of the Bush administration by refusing to participate in the NSA’s illegal activities.

Modern computer technology makes the potential for the abuse of unfettered executive power much greater today. Judicial oversight is at least as important in the 21st century as it was in the 20th, and Congress should resist Bush’s demand for unchecked spying powers.

Timothy B. Lee is an adjunct scholar at the Cato Institute, where Gene Healy is senior editor, and author of the upcoming book The Cult of the Presidency.