I don't get it. All summer we listened to incoherent testimony from the Attorney General of the United States. Alberto "prohibitions against torture are quaint" Gonzales, the guy who believes "there is no express grant of habeas in the Constitution," had tried to bully a near-comatose John Ashcroft into OK-ing a secret warrantless wiretapping program that illegally spied on citizens. Gonzales's general uncooperativeness was so great that there was loud Congressional discussion of censure or even impeachment.
Yet here we are, only a few weeks after all the brouhaha about his fronting for President Bush's pursuit of an ever more secretive unitary executive--and Congress passes a law that legalizes precisely the kind of warrantless wiretapping the Bush Administration, through Gonzales, was seeking. The Protect America Act of 2007, or Section 1927 of the Foreign Intelligence Surveillance Act (FISA), starts with a clever limitation of the meaning of "electronic surveillance." To provide a little background, "electronic surveillance" has always been characterized as a domestic police power that requires a warrant issued by a court in order to protect the privacy interests of citizens. Foreign intelligence gathering, on the other hand, is not covered by FISA--i.e., no warrant necessary--the underlying rationale being that noncitizens who are threats to national security need not be accorded a right to privacy. This general objective is controversial, but let's allow that it is reasonable enough as an overarching proposition. The new law, by contrast, effectively removes the expectation of rights distinguishing citizens from noncitizens, as well as collapses the wall between the furtive functions of foreign intelligence gathering and the public accountability constitutionally mandated in domestic law enforcement.
The problem the law ostensibly seeks to address is that many of the fiber-optics nodes through which global telecommunications flow are located here in the United States. Should we require a warrant to monitor parties located outside the country whose text messages pass through a phone center in California? This is an interesting legal issue, but the pressing conundrum raised by the breadth of Section 1927 is whether the realities of modern technology require American citizens to forsake any expectations of privacy as a consequence. Some would say yes. In an op-ed in the Los Angeles Times, David Rivkin Jr. and Lee Casey, former Justice Department officials under Reagan and Bush I, argue: "Our privacy is compromised daily by government and nongovernment actors. This is the price of living in a modern society. The real question is how to strike the balance. Americans may, for example, be subject to physical search without a warrant or judicial oversight whenever they leave or enter the United States. The same should apply to electronic communications coming into or going out of the United States; they should not be subject to a more stringent rule."
This sounds fair until you realize that every time you call a customer hot line or directory assistance there's a good chance you've been switched to someone in India or the Philippines. So the reality is that Section 1927 offers nothing like "balance" when it comes to phone or computer privacy. It allows for blanket data-mining of any and all electronic and telephonic communication by anyone, anywhere, whether chatting with a spouse, shopping for sex toys, making a doctor's appointment or confessing to a priest. And even if airport searches target dangerous objects, we do not thereby license airlines to indiscriminately search through our wallets, read our diaries or Xerox the contents of our briefcases.
You say you want to sue? Section 1927 excludes from judicial oversight all "surveillance directed at a person reasonably believed to be located outside of the United States." Technically, the term "person" includes citizens, even though media summaries discuss it as though it applies only to foreigners. Furthermore, anyone can be the object of investigation so long as it is "significantly" related to foreign intelligence--the substantiality of that relationship to be determined by our delightful Attorney General in tandem with the director of national security.
Paradoxically, the notion of "significance" is not connected to any outside review of substance. Indeed, the certification of data collection need not "identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed." Rather, the executive must simply present a set of "procedures...reasonably designed to ensure that acquisitions" are within the exception to FISA. "The court's review shall be limited to whether the Government's determination is clearly erroneous." But it is hard to imagine how a court could ever find specific improprieties in information-gathering if it can't consider substance. Procedures are rarely "clearly" wrong in the abstract: It's the application wherein trouble lies.
If, however, there were a judicial finding of clear error under Section 1927, the executive could then appeal all the way to the Supreme Court; and any surveillance would be allowed to "continue during the pendency of any appeal." Even assuming that the Supreme Court did strike down a particular operation, the law eliminates any cause of action--possibly even malicious prosecutions--"against any person for providing any information, facilities, or assistance in accordance with a directive under this section." Apparently the government claims a right to privacy (i.e., secrecy) even as it withdraws that right from its citizens.
According to Rivkin and Casey, however, 1927 isn't broad enough. They reject the notion of "a judicial imprimatur to the procedures used to intercept" what they and the Bush Administration wrongly characterize as exclusively overseas communications. They suggest that even the very limited power of courts to review procedures under 1927 exceeds the judicial limitation to individual cases, controversies and the issuance of warrants. I predict that this is an issue the Administration would like to see go before the Supreme Court. Any bets about what the Roberts Court would say about that swipe at checks and balances?
Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column "Diary of a Mad Law Professor."
© 2007 The Nation