Commentary

The Surveillance Scam

By Timothy B. Lee
This article appeared on Reason (Online) on February 7, 2008.

In his State of the Union address, President Bush pressed Congress to quickly pass legislation to make permanent the sweeping spying powers that Congress granted last August. Those powers, which include the ability to eavesdrop on foreign-to-domestic communications without meaningful judicial oversight, were due to expire last week. Congress has passed a two-week extension of the law, but that barely gives Congress time to catch its breath before the White House resumes its campaign to make it permanent.

Bush’s predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of “roving wiretaps.” The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so “in a methodical way that preserves our freedoms.” Senate Majority Leader Trent Lott vowed that Congress would not “rush to a final judgment” before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Why are today’s Democrats less concerned with civil liberties than Republicans were a decade ago?”

Today’s Democratic Congress has been far less protective of Americans’ privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about “rushing to judgment.” Indeed, both houses of Congress approved the White House’s preferred legislation with minimal changes within three days of its introduction.

Why are today’s Democrats less concerned with civil liberties than Republicans were a decade ago? Democratic leaders would doubtless point to the 9/11 attacks. Those attacks have certainly contributed to a changed political climate, but they don’t justify Congress’s panicky reaction to the president’s demands. Congress had already expanded eavesdropping powers several times since 9/11. Congress approved new wiretapping authority with the Patriot Act in 2001, and approved further expansions later in 2001 and in 2002, 2004, and 2006. If the new powers the president was seeking weren’t urgent enough to include in those revisions to the law, it’s hard to believe they were an emergency in August 2007.

Moreover, the powers Congress granted last summer are far broader those sought by the Clinton administration in 1996. The “roving wiretaps” Clinton requested in 1996 and finally received in 1998 merely allowed investigators to obtain a single warrant to bug multiple phones used by a specific individual. In contrast, the Protect America Act completely eliminates the warrant requirement for surveillance “concerning persons reasonably believed to be outside of the United States” — even if one party to a call is an American citizen and the wiretap occurs on American soil. The attorney general is required to disclose to a secret court the general procedures used to choose wiretapping targets, but no judge reviews the list of specific targets to verify that the law is being followed. This evisceration of judicial review is an invitation to future abuses.

The lone virtue of the Protect America Act is that the powers it granted are now set to expire in mid-February. As this revised deadline approaches, Speaker Nancy Pelosi and Majority Leader Harry Reid will once again face pressure to rush the White House’s preferred legislation out the door. The president will claim that failure to act before the Protect America Act sunsets will undermine the government’s ability to eavesdrop on terrorists.

It’s an ominous claim, but it’s not true. The Protect America Act allows the administration to “authorize” eavesdropping programs for a year at a time. That means that the government’s various warrantless surveillance activities will continue to operate at least through August. And of course, if the need for new wiretaps arises after the act sunsets, the administration still has the opportunity to file for warrants under the Foreign Intelligence Surveillance Act (FISA). FISA even allows the government to begin surveillance first and apply for an emergency warrant after the fact.

In short, the administration will have ample authority to intercept terrorist communications for at least the next six months. As they shepherd FISA reform through Congress, Pelosi and Reid would do well to heed the advice of one of Pelosi’s predecessors: “The goal here is not to allow the terrorists to pressure us into suspending the very freedoms that make America precious.” Those words are as true today as when Newt Gingrich said them in 1996.

Timothy B. Lee is an adjunct scholar at the Cato Institute.