Storm clouds are roiling anew over Washington this week as the impending expiration of the Protect America Act brings surveillance legislation to the forefront of congressional attention once again.
Not least among the rumbles of thunder was an address delivered Wednesday by Vice President Dick Cheney at the Heritage Foundation, a conservative think tank, in which he urged Congress to make permanent changes to the Foreign Intelligence Surveillance Act (FISA) of 1978 that were only temporarily provided last summer by the Protect America Act, which is set to expire next week.
“Fighting the war on terror is a long-term enterprise that requires long-term, institutional changes,” Cheney said. “The challenge to the country has not expired over the last six months. It won’t expire any time soon — and we should not write laws that pretend otherwise.”
Included among the provisions Cheney advocated was legal immunity for the telecoms and other firms that have helped the National Security Agency conduct electronic surveillance.
“The law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits,” he said. “We’re asking Congress to update FISA and especially to extend this protection to communications providers alleged to have given such assistance any time after Sept. 11, 2001.”
‘Critical’ Senate Defeat
Elevating the electrostatic tension on Capitol Hill even further, however, was the Senate’s rejection on Thursday afternoon of an amendment designed to restore what privacy advocates consider essential checks and balances on the process of conducting electronic surveillance.
“The Senate just rejected the most critical civil liberties amendment that it will consider over the next few days,” Gregory Nojeim, senior counsel and director of the project on freedom, security and technology at the Center for Democracy and Technology, told the E-Commerce Times.
The amendment to the intelligence committee’s bill was sponsored by Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and “would have gone a long way toward protecting the communications innocent Americans have with foreigners abroad by introducing a reasonable amount of supervision,” Nojeim said.
Among other things, the amendment would have prohibited reverse targeting, or the practice of listening in on a person abroad for the underlying purpose of conducting surveillance of a person within the United States, he added. In that way, it would have brought the Senate’s bill closer to the RESTORE Act — short for the Responsible Electronic Surveillance that is Overseen, Reviewed and Effective Act of 2007 — passed by the U.S. House of Representatives last fall, he noted.
“From our perspective, the degree to which the judiciary can check unlawful surveillance is much more important than whether the telecoms are given immunity,” Nojeim asserted. “That issue shouldn’t crowd out these other important questions.”
Lawsuits Under Way
The move to update FISA became a controversial issue last August when it was revealed that a special FISA court had made a secret ruling in recent months limiting the government’s authority to eavesdrop on phone calls and e-mails.
After a Democratic alternative was defeated, the Protect America Act was rushed through just before the start of Congress’s August recess, granting the government more freedom to wiretap without warrants. Because of a sunset clause included to force the issue to be reexamined in six months, however, the act is due to expire Feb. 1.
Not included in the Protect America Act, however, is retroactive immunity for telecommunications companies that have come under fire for their role in wiretapping efforts conducted by the NSA. AT&T, for instance, is involved in a lawsuit brought by the Electronic Frontier Foundation for its assistance in the NSA’s broad-scale wiretapping efforts.
‘An Impossible Requirement’
President Bush has also said he wants to make that immunity a reality.
“The Protect America Act expires in just 10 days, yet after nearly six months of delay, Congress has still not taken the necessary action to keep our Nation safe,” said White House Press Secretary Dana Perino on Tuesday.
“The terrorist threat we face does not expire on February 1,” Perino added. “For the sake of our national security, Congress must act now to send the President a bill that keeps a critical intelligence gap permanently closed and provides meaningful liability protection for companies that may have assisted in efforts to defend America following the 9/11 attacks.”
Part of closing that intelligence gap, the White House contends, is protection for companies that help the government. “Companies should not be held responsible for verifying the government’s determination that requested assistance was necessary and lawful — and such an impossible requirement would hurt our ability to keep the Nation safe,” it said.
Creating More Terrorists?
Privacy and civil-rights advocates, not surprisingly, are not so sure.
“The methods Cheney lauds have actually undermined our support around the world, emboldened our enemies and given them propaganda to use against us,” possibly creating more terrorists than are being stopped, Mike German, a former FBI agent who is now policy counsel for national security issues with the American Civil Liberties Union, told the E-Commerce Times.
“Turning the security apparatus against the people is a violation of our fundamental agreement with the government about the limits of its power,” German added.
In addition, “our intelligence agencies don’t need more power, they need better management,” German asserted. “Giving them more power without better management won’t serve our security interests at all.”
‘They Broke the Law’
Regarding the telecoms’ role in NSA wiretapping efforts, “it’s really simple — the fact is, they broke the law,” Richard Esguerra, activist for the Electronic Frontier Foundation, told the E-Commerce Times.
There are established laws for what needs to be done when the government requests information from a company — many of them spelled out in the original FISA legislation — and companies have to follow those procedures, Esguerra noted.
Asking for a warrant, for example, is something that must be done in such situations, he pointed out. “They broke the law when they didn’t,” he said.
A Pressure Cooker
Looking forward, it’s not yet clear how the sequence of events will unfold as Feb. 1 approaches, but Esguerra and others are firm that no decisions should be made in a hurry.
Senate Majority Leader Harry Reid of Nevada on Wednesday sent President Bush a letter, urging him to support a one-month extension of the nation’s foreign surveillance program so that new legislation could benefit from more careful reasoning, but that was met with objections from Senate Republicans.
“Ultimately, we’ve been advocating for a repeal of the Protect America Act and a total, top-down redoing of the surveillance situation,” Esguerra said.
In light of the current environment, however, the EFF supports the notion of extending the Protect America Act as Reid proposed.
“We think an extension of the PAA makes sense,” Esguerra said. “As much as we don’t like what it does, the Senate should be able to take its time in considering these issues. If this all happens in this pressure cooker situation, it increases the odds of a bad law emerging that hurts the rights of Americans.”