Before the Democratic-controlled Congress caved in on George W. Bush’s warrantless-wiretapping powers, White House lawyers slipped in two provisions to give the President even more authority – and less accountability – than he claimed on his own. And the U.S. press corps largely missed that part of the story.
U.S. news reports mostly parroted the White House claim that the law “modernizes” the Foreign Intelligence Surveillance of 1978 and “narrowly” targets overseas terror suspects who call or e-mail their contacts in the United States. But the “Protect America Act of 2007” actually casts the wiretapping net much wider.
The law applies not just to terror suspects abroad who might communicate with Americans at home, but to anyone who is “reasonably believed to be outside the United States” and who might possess “foreign intelligence information,” defined as anything that could be useful to U.S. foreign policy.
That means that almost any American engaged in international commerce or dealing with foreign issues – say, a businessman in touch with a foreign subsidiary or a U.S. reporter sending an overseas story back to his newspaper – is vulnerable to warrantless intercepts approved on the say-so of two Bush subordinates, Attorney General Alberto Gonzales and Director of National Intelligence Mike McConnell.
Beyond the breathtaking scope of this new authority, the Bush administration also snuck in a clause that grants immunity from lawsuits to communications service providers that comply with spying directives from Gonzales and McConnell.
Before the “Protect America Act” won final approval from Congress on Aug. 4 and was signed into law by Bush on Aug. 5, one of the few safeguards against Bush’s warrantless wiretaps was the concern among service providers that they might be sued by customers for handing over constitutionally protected information without a warrant.
In earlier Capitol Hill discussions of a compromise bill, the administration reportedly had agreed to delete this immunity provision for service providers. However, when negotiations broke down – and Bush made clear he would accuse the Democrats of endangering the nation’s safety – Republicans put an immunity clause back into the final bill.
Then, in the chaotic hours before Congress left for its August recess, Democratic leaders allowed the Republican-authored bill to be rushed through the Senate and the House with centrist Democratic votes ensuring passage.
Though getting almost no attention in the U.S. press coverage, the immunity paragraph reads: “Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.”
In other words, U.S. citizens, who believe that warrantless surveillance has violated their Fourth Amendment rights against unreasonable search and seizure, will have no legal recourse against the service provider that collaborated with the government.
This immunity provision is important, too, because the only meaningful safeguard against abuse of the new spying power was that service providers could challenge a wiretap directive through a secret court proceeding.
That process already was weighted heavily in the Bush administration’s favor since the service provider would not know the classified basis for the wiretap directive. That evidence only would be shared ex parte in a secret conference between administration lawyers and the judge.
So, the service provider would have to file a costly lawsuit on behalf of an unknowing customer who might or might not be a legitimate target of government surveillance. In filing the suit, the service provider also risked angering the U.S. government, which often is a major customer with the same service provider.
Now, the new law tilts the scales even further, making the warrantless surveillance legally cost free for a collaborating service provider.
These two features – the expansive wiretap coverage and the immunity provision for service providers – were cited in our Aug. 5 article at Consortiumnews.com. [See “Bush Gets Spying Blank Check.”]