Protect America, Not Just George Bush

by Stephen Mathis

As house Republicans now push for a vote on the Senate's revision of the Protect America Act, one key point has been lost in the debate: The Senate version of the legislation would do more to protect the Bush administration than it would to protect Americans and their rights.

Recently, the U.S. Supreme Court refused to hear a case against the government, brought by the ACLU and others, alleging that the National Security Agency's warrantless wiretapping program had violated the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA) then in effect. FISA was designed to provide a check on the executive branch's ability (via the NSA, FBI and CIA) to conduct surveillance on foreign states and individuals in the United States.

When the Supreme Court refused to hear the ACLU's case, it effectively endorsed the lower court's ruling and the reasoning within it. The lower court held that neither the ACLU nor any of the other individual Americans who brought the case had standing to bring it, because none of them could prove that the government had monitored their communications. In other words, since the plaintiffs could not show that their rights were violated, they had no right to pursue the matter in court.

What's interesting here is why neither the ACLU nor any of the other plaintiffs could prove that their rights were violated.

When the plaintiffs asked the lower court to compel the government to reveal if it had monitored their communications, the government claimed -- and the court agreed -- that it should not have to divulge such information because it is classified, or a "state secret." So the government did not have to reveal it, even if it would have shown that the government had committed criminal acts. That left the plaintiffs without evidence of having been wronged and thus without standing.

This decision, which the Supreme Court effectively upheld without comment, means that if the government violates the law and monitors the communications of Americans without following the proper procedures, then individual Americans can't do anything about it, at least not in criminal court. This would be true not only of FISA, but also of the Protect America Act, which was meant to update FISA.

In light of this decision, it's notable that only the most recent revision of the Protect America Act would provide additional avenues of recourse for individual citizens against the government. But this most recent revision seems unlikely to pass and faces a presidential veto if it does.

It's also important to note that previous versions of the act, including the one that passed the Senate most recently, provide some judicial oversight of the executive branch's surveillance activities, but less than the original FISA. Given that the Supreme Court accepted the "state secret" defense with respect to FISA, there is no reason to expect a different outcome under a less restrictive law.

The court's refusal to hear the ACLU's case means that laws seeking to limit the executive branch's ability to monitor communications would be impossible to enforce after the fact. The judicial oversight in both FISA and previous versions of the Protect America Act constrain the executive branch on the front end -- but only if the administration decides to follow the procedures that provide this oversight. If the administration chooses not to follow them, as it chose not to follow them in the recent past, the law does nothing to protect Americans -- except those in the executive branch.

All of these points raise one important question: If the version of the Protect America Act House Republicans prefer would not protect American citizens outside of the executive branch, then what is the point of passing it?

When one considers the president's insistence on including retroactive immunity for telecommunications firms that aided the administration in circumventing FISA, the answer becomes clearer. Since the court has ruled out recourse in the criminal courts, the only real threat to the executive branch is that posed by civil lawsuits against the telecoms. These civil suits would undoubtedly bring to light more about the character and extent of this administration's extralegal surveillance activities, and only retroactive immunity for the telecoms can protect the executive branch from that possibility.

As such, the version of the Protect America Act House Republicans favor would protect this administration from the only remaining form of liability it faces. The deeper problem is that it would do so at the expense of legal protections for the American people.

Stephen Mathis is an associate professor and chairman of the philosophy department at Wheaton College in Norton, where he specializes in legal and political philosophy.
© 2008, Published by The Providence Journal Co.