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Congress caves on Bush spy legislation

By Nicole Colson | August 17, 2007 | Pages 1 and 3

"APPALLING," "UNNECESSARY," "surrender." Those were the words that the editorial pages of mainstream newspapers like the New York Times and Washington Post used to describe Congress' passage of a bill in late July that vastly expands the Bush administration's power to spy on Americans.

Sixteen Democrats in the Senate and 41 in the House voted for the bill, saying that concerns about "national security" left them no other choice.

The truth, however, is that the new law goes far beyond what even the Bush administration initially said it needed to allow the gathering of information about foreign terrorists. The result, according to civil liberties activists, is an attack on the rights of ordinary Americans not seen since the government spy programs of the Cold War.

Billions more e-mails and phone conversations going in and out of the U.S. and to and from foreign countries can now be legally monitored by the government. Under the new law, the legal definition of what is considered "electronic surveillance" has been changed to allow the government to tap into giant telecommunications switches located in the U.S.--where most international telephone conversations to and from the U.S. are routed--as long as the target of the government's surveillance is "reasonably believed" to be overseas.

Previously, under the 1978 Foreign Intelligence Surveillance Act (FISA), the government needed a search warrant approved by the FISA court to carry out such eavesdropping involving American citizens.

The court has approved nearly every request a presidential administration has ever made, but that wasn't good enough for the Bush administration, which began a program of warrantless wiretapping under the auspices of the National Security Agency (NSA).

Last year, U.S. District Court Judge Anna Diggs Taylor found that the program violated not only FISA, but also the Fourth and First Amendments. Earlier this year, in a still-classified ruling, the FISA court also reaffirmed the government needed to seek court-approved warrants to monitor international calls going through American telecommunication switches.

"There are no hereditary kings in America and no powers not created by the Constitution," Diggs Taylor wrote in her ruling. "It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights."

Now, however, Congress has rolled over where a federal judge wouldn't. As Kate Martin, director of the Center for National Security Studies in Washington, told the New York Times, the new law "more or less legalizes the NSA program."

The White House insists that only foreign terrorist suspects will be monitored, but the reality is that millions of Americans--along with countless others around the globe--will likely face surveillance of their e-mails and calls.

According to the Times, the law is so broadly written that it would allow the government to intercept, without a warrant, every communication into or out of any country, including the United States, without even requiring that the targeted person be connected to terrorism in any way.

As Salon's Glenn Greenwald wrote, "Any person--even the most innocent--can be subjected to warrantless surveillance under this new law."

In addition, the new law gives the attorney general and director of national intelligence the power to force telecommunications companies to cooperate with government spying operations.

These two officials also have sweeping new powers to approve international surveillance, rather than the FISA court. Now, the court can only review and approve procedures used by the government after surveillance has already been conducted.

Some Democrats said the fact that the new law will expire in six months is a victory. But as the New York Times commented in an editorial, "Mostly, the spectacle left us wondering what the Democrats--especially their feckless Senate leaders--plan to do with their majority in Congress if they are too scared of Republican campaign ads to use it to protect the Constitution and restrain an out-of-control president."

As Caroline Fredrickson, director of the ACLU Washington Legislative Office, said in a statement after the bill was passed, "Where will Congress go from here? More unfettered power for an administration that has no respect for the privacy of the citizenry that elected it? A get-out-of-jail free card for the companies that facilitated wiretapping, that until Sunday, was a crime?...

"Democrats were elected to stop a president who is out of control--not grease the wheels for further abuse. Hopefully, it won't take the full six months to pass legislation that will protect American communications. With any luck, congressional leadership will grow a spine before then."

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