Bush Gets a Spying Blank Check
Eager to leave for its August recess, Congress handed George W. Bush another blank check on executive power, letting him order up spying directives against a vast number of people, including Americans, if they are physically outside the United States.
The “Protect America Act of 2007” sets the standard for a surveillance order – which can last for up to one year – as simply that it be “directed at a person reasonably believed to be located outside the United States.”
The bill’s advocates claim it is intended to intercept communications when at least one party is linked to a terrorist group or a terrorist affiliate and is outside the United States. But the bill’s language doesn’t limit the surveillance to “terrorists” or “enemy combatants” – indeed those words are not mentioned in the legislation.
Nor does the bill, which was drafted by the Bush administration’s national security team, specify what happens to a one-year surveillance order against a target if the person then enters – or returns – to the United States. The vaguely worded act gives broad discretion to Attorney General Alberto Gonzales and Director of National Intelligence Mike McConnell.
Its key language states: “Notwithstanding any other law, the Director of National Intelligence and the Attorney General may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States.”
In the pre-recess rush to wrap up legislative business – and to avoid a messy confrontation with President Bush – Congress offered only cursory attention to what this provision means and what new abuses are now possible.
For instance, could a one-year surveillance order be issued against an American attorney who was representing a Guantanamo detainee and who traveled to Europe for a legal conference? Could the surveillance order follow that person back home? How about an outspoken peace activist who visited a friend in Canada?
The key limitation on the administration’s authority is the need to be seeking “foreign intelligence information.” Though the term does cover information about possible hostile acts by a foreign power or an agent of a foreign power, including sabotage, terrorism or clandestine intelligence activities, the phrase can be interpreted in a far looser way.
The term can be defined broadly as information about a foreign power that relates to U.S. national defense, national security or the conduct of foreign affairs. In today’s world, those categories could mean pretty much anything.
Other supposed safeguards in the bill might not be reassuring to its targets, either. While the targets obviously are kept in the dark about the surveillance, their communications providers – such as phone companies or e-mail services – can challenge the government’s order if they’re willing to absorb the expense and offend the Executive Branch, which often has giant contracts with the same providers.
Even then, the service providers, which aren't told the classified basis for the surveillance order, can only contest the surveillance on procedural grounds through the secret channels of the FISA court system, with appeals of adverse rulings allowed by either side up to the U.S. Supreme Court.
But service providers are given a strong incentive not to challenge the government’s order. While a legal challenge on behalf of an unsuspecting client could be expensive – especially if the Bush administration were to retaliate by shifting government contracts to a competitor – the legislation grants immunity from liability to any service provider who complies.
“Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section,” the bill states.
In other words, if spying targets later discover that their service providers gave the government access to their phone calls and e-mails, they have no grounds to sue for damages, regardless of how unjustified the surveillance may have been.
Given the Bush administration’s proclivity for stretching the boundaries of its powers, the scope of the spying legislation alarmed civil libertarians and some Democrats who favored a more limited revision of FISA to address a supposed new obstacle related to spying on suspected al-Qaeda operatives.
House Minority Leader John Boehner, R-Ohio, divulged in a Fox News interview on July 31 that a FISA court had ruled in secret that warrantless intercepts of foreign communications routed through the United States were illegal.
“There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner said.
President Bush then demanded that Democrats approve a revision to the FISA law before leaving for the August recess. Democrats thought they had reached a compromise that would address the kind of situation described by Boehner, but the White House and the Republicans demanded more sweeping changes.
The Senate caved in first, voting 60-28 to authorize Bush’s broader spying powers, with many centrist Democrats – such as California Sen. Dianne Feinstein and Virginia Sen. Jim Webb – joining a solid phalanx of Republicans. (Presidential contenders – Sens. Hillary Clinton, Barack Obama, Chris Dodd and Joe Biden – voted no.)
On Aug. 4, Bush turned up the heat on the House. He called the spying powers contained in the bill crucial weapons in the fight against terrorism and declared that “protecting America is our most solemn obligation.”
Many Americans would disagree, arguing that the most solemn obligation is to protect the Constitution and the Bill of Rights. But the Democratic congressional leaders acted as if their highest priorities were getting away for the August recess and avoiding ugly attacks on their patriotism from Fox News and the right-wing media.
Instead of canceling the recess – and using the month of August to fight over both Bush’s extraordinary expansion of presidential powers and the Iraq War – House Democratic leaders brought the Senate-approved “Protect America Act of 2007” to the floor. It carried, 227-183, with 41 Democratic defections.
Trying to put the best spin on their defeat, Democratic leaders pointed to their one concession: a sunset provision that requires President Bush to seek renewal of his powers in six months.
However, not only it is it hard to envision the Democrats finding more backbone to stand up to the “soft on terror” charge in an election year, but passage of the bill complicates the argument that Bush broke the law with his prior warrantless wiretapping.
Bush’s defenders can now cite this broad legislative authority as giving, in effect, a retroactive congressional blessing to Bush’s apparent violations of FISA, which requires a secret court warrant for eavesdropping and other spying inside the United States.
Some rank-and-file Democrats also may wonder how valuable their party’s electoral victory in November 2006 has proved to be. Despite gaining control of Congress, the Democrats have failed to stop the Iraq War or to reinstate habeas corpus and other constitutional rights that were breached by the Military Commissions Act of 2006, passed before the election.
[For more on Bush’s assault on American liberties, see our new book, Neck Deep: The Disastrous Presidency of George W. Bush.]
Ducking a Fight
The Democratic leaders have failed to slow the growth of presidential power in large part because they keep avoiding a showdown with Bush.
Early on, House Speaker Nancy Pelosi, D-California, took presidential impeachment “off the table.” Plus, Sen. Carl Levin, D-Michigan, chairman of the Senate Armed Services Committee, said he would always approve Bush’s requests for Iraq War funding even as Republicans use vetoes and filibusters to block Democratic war policy alternatives.
Democrats also remain fearful of right-wing media attacks on their patriotism. In a July meeting with former CIA officer Ray McGovern and some impeachment backers, House Judiciary Committee Chairman John Conyers, D-Michigan, lamented that the Republicans and Fox News would have a field day if a Democratic impeachment effort flopped. [See Consortiumnews.com’s “John Conyers Is No Martin Luther King.”]
Now, in August, the Democrats have shied away from another confrontation with Bush, leaving little doubt that last November’s election has done little to change the underlying political dynamic of Washington.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there.
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