The National Security Agency surveillance authorization law passed in the frantic final hours before Congress took its August recess turns out to be much more expansive in its grant of power to spy on Americans without warrants or judicial oversight than had been widely understood at the time of its passage.
House Speaker Nancy Pelosi is said to be so upset that she wants to take up legislation to limit the law’s scope in September rather than next February, when the law is scheduled to be renewed or revised.
Speaker Pelosi’s concern is warranted, but her chances of success are limited. Even if congressional Democrats were able to pass an acceptable bill, Senate Republicans could filibuster it (which would require 60 votes to break through) and President Bush could veto it (which would require a two-thirds majority to override). It might be better to spend time between now and February publicizing just how breathtakingly extensive this spying program has become and mobilizing public support to put more reasonable limits in place.
The ostensible reason for a full-court press on a new surveillance law had to do with changes in technology since the Foreign Intelligence Surveillance Act was passed in 1978 in response to widespread reports of abusive spying on Americans by the CIA and others during the 1970s. It turns out that, today, many foreign-to-foreign electronic communications are routed through hubs in the United States, and the FISA court, whose decisions are secret, reportedly ruled in March that warrants would be required to intercept that traffic.
That created a bottleneck that could have been fixed by a new law authorizing interception of targeted terrorist-suspect communications without a warrant. Most of the news stories suggested that’s what was passed.
A retrospective story in the Washington Post and blogs from lawyers who have had a chance to read the entire bill, however, make it clear that the government got a lot more surveillance power than most Americans realized.
Participants in negotiating sessions report that Director of National Intelligence Adm. Mike McConnell insisted that “all foreign intelligence” targets in touch with Americans, communicating about anything potentially useful, not just suspected terrorists or al-Qaida members, should be subjected to surveillance without warrants — and that’s what the administration got.
In addition, language was changed from warrantless surveillance “directed” at people “reasonably believed to be outside the United States” (which could include traveling U.S. businesspeople or tourists), to data “concerning” such people. That’s a much wider net.
To be sure, this is probably not the end of privacy, which is not what it was before the Internet and other modern technologies, anyway. But surveillance that is widespread rather than targeted at known terrorists and other legitimate threats is not only likely to ensnare some innocent Americans, it is a waste of taxpayers’ money.