Bush Signs Law to Widen Legal Reach for Wiretapping

By JAMES RISEN

Published: August 6, 2007

WASHINGTON, Aug. 5 — President Bush signed into law on Sunday legislation that broadly expanded the government’s authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

They also said that the new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can listen to the private communications of American citizens.

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

Today, most international telephone conversations to and from the United States are conducted over fiber-optic cables, and the most efficient way for the government to eavesdrop on them is to latch on to giant telecommunications switches located in the United States.

By changing the legal definition of what is considered “electronic surveillance,” the new law allows the government to eavesdrop on those conversations without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is “reasonably believed” to be overseas.

For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.’s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

“It’s foreign, that’s the point,” Mr. Fratto said. “What you want to make sure is that you are getting the foreign target.”

The legislation to change the surveillance act was rushed through both the House and Senate in the last days before the August recess began.

The White House’s push for the change was driven in part by a still-classified ruling earlier this year by the special intelligence court, which said the government needed to seek court-approved warrants to monitor those international calls going through American switches.

The new law, which is intended as a stopgap and expires in six months, also represents a power shift in terms of the oversight and regulation of government surveillance.

The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.

The law also gave the administration greater power to force telecommunications companies to cooperate with such spying operations. The companies can now be compelled to cooperate by orders from the attorney general and the director of national intelligence.

Democratic Congressional aides said Sunday that some telecommunications company officials had told Congressional leaders that they were unhappy with that provision in the bill and might challenge the new law in court. The aides said the telecommunications companies had told lawmakers that they would rather have a court-approved warrant ordering them to comply.

In fact, pressure from the telecommunications companies on the Bush administration has apparently played a major hidden role in the political battle over the surveillance issue over the past few months.

In January, the administration placed the N.S.A.’s warrantless wiretapping program under the Foreign Intelligence Surveillance Act, and subjected it for the first time to the scrutiny of the FISA court.

Democratic Congressional aides said Sunday that they believed that pressure from major telecommunications companies on the White House was a major factor in persuading the Bush administration to do that. Those companies were facing major lawsuits for having secretly cooperated with the warrantless wiretapping program, and now wanted greater legal protections before cooperating further.

But the change suddenly swamped the court with an enormous volume of search warrant applications, leading, in turn, to the administration’s decision to seek the new legislation.

SOURCE

MY COMMENTARY

So, if I understand this correctly, the Executive Branch of our government now has the authority granted by Congress to monitor any electronic correspondence that crosses either borders or oceans at its own discretion. With this newly created wound to the Fourth Amendment to our Constitution carries with it the distinct possibility that, should a person who expresses a dissenting opinion of anything the President does communicate with anyone overseas, their conversation and e-mails could be monitored. Under these new rules, because I have a friend in Italy who shares in my disdain for the war in Iraq, my phone calls and e-mail could be read without my knowledge. In fact, I wouldn't know it until the FBI came knocking on my front door. I know that that sounds extraordinarily paranoid to most, but it really isn’t. Allow me to explain:

Once a single one of your rights is voluntarily infringed upon, you have opened up the door for all of your other rights to be infringed upon. After 9/11, people all over the United States were screaming for the heads of those who committed that heinous act. They were screaming “please, Mr. President, PROTECT us”! President Bush stepped right up and pledged to do just that. The part that many people paid little attention to was the part of that “pledge” where he said that he was going to listen to your private phone calls and read your private e-mails in order to “protect” you. The government has already limited your Second Amendment rights. The funny thing about that is that it was all done in the name of “protecting you and your children”. Honestly, can anyone say that they feel safer knowing that a law-abiding citizen can only have 7 rounds for their gun and that a criminal can have as many as they want AND put those rounds into a fully automatic assault rifle?

I have to ask you all a question: do you feel any safer, or do you feel more oppressed? Personally, I feel more oppressed. I feel more oppressed because I know that I risk everything to make the statements that I make. I am no terrorist, nor would I ever do or say anything that would bring disgrace or otherwise harm the country of my birth. But, as has been proven on several occasions (The Plame Affair, Thomas M. Tamm), all one must do to incur the wrath of the Executive Branch is say the wrong thing about them, even if it were true. The next thing you know, you’re declared an enemy combatant and thrown under a prison somewhere being denied your right to Habeas Corpus, which has been murdered (7) by this administration.

Please note and read this article. I point out this article mainly because it applies to what I am attempting to point out to you. The statement I am placing in quotes says it all (the article was in reference to the detainee bill from 2006):

“The bill also expands the definition of an unlawful enemy combatant to cover anyone who has “has purposefully and materially supported hostilities against the United States.” Quick, define “purposefully and materially.” One person has already been charged with aiding terrorists because he sold a satellite TV package that includes the Hezbollah network.”

What I am attempting to point out is that all one has to do is say or do the wrong thing, even if it is unintentional, to lose everything. Click on the wrong link, dial the wrong telephone number or maybe just walk into the wrong Middle Eastern restaurant after having said something negative about the President, the Iraq war or just mentioning the name of some known terrorist and you are finished. It is a sad state, in my opinion, when we let our fear of the unknown override our need for freedom.

Oh, one more thing. What terrorist is going to go and get a service contract with a cell phone provider to do their business on anyway? Quick answer: THEY DON’T! They buy pre-paid cell phones, which are untraceable, with fake identification and cash!

I will leave you with this quote (it is one of my personal favorites):

"Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety"