The Senate passed Wednesday the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 as a “compromise” between Democrats and Republicans, although it was by and large a victory for the Bush administration.
President Bush signed it into law on Thursday.
Twenty Democrats voted for the bill, including Sen. Barack Obama, who has been criticized by his supporters for caving to Republican pressures.
Created 30 years ago in response to Watergate and the Vietnam War, the original FISA law sought to prevent government abuse of surveillance power by establishing a secret court to oversee and approve government wiretapping activities.
After 9/11, President Bush sidestepped FISA courts by authorizing warrantless wiretapping with the cooperation of telecommunications companies.
Debate over the FISA amendments centered on giving telecommunications companies that cooperated with the government retroactive immunity. That means citizens who were spied upon through phone or computer lines without the consent of the secret FISA court have no legal recourse for the violation of their civil liberties.
This sets a dangerous precedent for the future, sending the message that the government will protect companies that abet them in violating citizens’ civil liberties.
The new law also extends the timeline for obtaining judicial authorization. Before, the government had three days to conduct wiretapping activities in an emergency situation without the approval of the FISA court. Now, the government has a week to submit a certification, meaning it may complete its surveillance before it even appeals to the court for approval.
Further, under the new law, authorities could drag out the judicial review process for up to four months if the court has problems with the appeal.
Under the old law, the court had to approve a wiretap in the U.S. even if one of the sources of communication was abroad. But the new law allows the attorney general and director of national intelligence to bypass the court and authorize surveillance “targeting people reasonably believed to be located outside the United States.” This clause is subject to manipulation.
Now, the judge’s primary role is to confirm that the government’s certification for surveillance is complete and is only “reasonably designed” to target foreigners. While the surveillance may be reasonably designed to target foreigners, it can target citizens at the same time.
There are no checks to effectively prevent the government from simultaneously spying on domestic activities like Internet gambling. Because the Foreign Intelligence Surveillance Court of Review ruled in 2002 that FISA does not prohibit coordination between the FBI and National Security Agency, information the NSA gathers that is “reasonably designed” to target foreigners could also be used by the FBI to prosecute citizens for domestic crimes.
The only real “compromise” of the new legislation is that it ostensibly provides greater protection for Americans living overseas.
Under the old law, the government could eavesdrop on citizens overseas without authorization. The new law, however, requires court approval.
That Democrats and Republicans consider an affirmation of Americans’ civil rights while abroad a political compromise shows just how much civil liberties have come under siege by the Bush administration.
While the FISA amendments were intended to limit government abuse of power, they create loopholes that allow for an even greater potential for abuse. To avoid a possible veto, defenders of civil liberties would have best been served by waiting until the end of the Bush administration to revise FISA.