Fix spying laws to protect liberties

December 26, 2007|By Susan Goering

In December 2005, the Bush administration gave Americans a lump of coal in their stockings in the form of revelations that the National Security Administration had been unconstitutionally spying on Americans without a warrant for years. Maintaining that it was all perfectly legal, the administration has continued to spurn even the Foreign Intelligence Surveillance Court's minimal requirements for getting a warrant - an arrangement that had worked since 1978 to protect the nonterrorists among us.

Most big phone and e-mail companies, it turned out, were also complicit, having turned over to the NSA, without a subpoena, their customers' private information in violation of federal privacy laws. This raises the specter of the kinds of abuses we saw before the Foreign Intelligence Surveillance Act, such as government officials asking the phone company to wiretap their political "enemies." Yet in the wake of lawsuits filed against them, the phone companies want blanket immunity that would stop the lawsuits cold.

To make matters worse, this August, after nearly two years of persisting in these violations of the law, the administration scared Congress into expanding the NSA's ability to eavesdrop without a FISA court-approved warrant. Democrats vowed to fix that mistake, which brings us to the bills before Congress in the coming days.

Congress is poised to do two bad things: give President Bush virtually everything he wants when it comes to continued out-of-control government spying, and give the telecoms blanket immunity from lawsuits.

The good news is that a handful of senators, including Maryland's Benjamin L. Cardin, have stopped this outrage - at least for now. Mr. Cardin was one of 10 senators who voted for a procedural measure to block consideration of legislation that would have given President Bush everything he wants. Although that effort failed, Mr. Cardin and others were able to force the Senate leadership to pull the legislation from the floor until after the holiday recess - giving supporters of freedom more time to push another bill that better protects our rights and does not include immunity for the telecoms.

However, Maryland constituents could justifiably be dismayed that our other senator, Barbara A. Mikulski, supports passage of the Bush administration's bill. Ms. Mikulski ought to reverse course by January.

In the spirit of Santa Claus, Congress should think twice about just how naughty the Bush administration has been. All of the administration's past lawbreaking was done under the guise of fighting international terrorists overseas in the post-9/11 era. But it turns out that the White House hasn't been telling us the truth about its dragnet operations.

With the help of recent revelations in The New York Times, we made a list of the ways that the Bush administration has hidden the facts on government spying. Congress should check it twice before it succumbs once again.

They told us it was all about stopping terrorism. But now we've learned that the NSA's massive wiretapping and data collection program started long before 9/11 - in fact, it started in the 1990s - and was ramped up by this administration immediately after President Bush took office. The NSA also routinely collects phone records for run-of-the-mill drug cases that have nothing to do with terrorism.

They told us they weren't targeting domestic conversations. But now we find out that the taps weren't focused on foreigners or even international calls. The Times reveals that part of what made telecom Qwest balk at a request for data in early 2001 was that the program was designed to pick up significant amounts of purely domestic communications by granting the NSA access "to their most localized communications switches, which primarily carry domestic calls," and that only "limited international traffic also passes through the switches."

They told us they were gathering just the data they absolutely needed to fight terrorism. But now we know that this is not a program narrowly targeted at terrorists. Their repeated assurances that the government doesn't conduct vast dragnet operations just aren't true. As The Times reported, "The NSA met with AT&T officials to discuss replicating a Bedminster, N.J., network center here in Maryland to give the agency access to all the global phone and e-mail traffic that ran through it."

What should Congress do? First, safeguards to our civil liberties should be in any bill that passes, including a requirement for individualized, rather than blanket, warrants. Second, it should refuse the telecoms immunity so that those whose privacy was violated have their day in court.

This is a holiday gift that America could really use - that is, if you consider basic civil liberties a "gift" to be bestowed rather than an inherent right of all citizens.

Susan Goering is the executive director of the American Civil Liberties Union of Maryland. Her e-mail is goering@aclu-md.org.

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