FISA, the Patriot Act, and the Protect America Act: Who's Protecting Whom from Whom?

FISA (Foreign Intelligence Surveillance Act) is in the news again, or still. FISA dates back to 1978. From around 1970 on, "massive domestic spying abuses by the FBI, CIA and NSA" was a very hot topic. In 1972, the Supreme Court decided that "warrantless wiretaps of domestic groups for national security reasons were a violation of the Fourth Amendment."

That was then

There were real, and serious, questions about due process and constitutional rights of American citizens. These questions were dealt with, thirty years ago: with careful attention paid to the latest communications technology commonly available at the time. Which, in 1978, included

• Telephones
• Photocopiers
• Videotape recorders (a rather cutting-edge technology) and audiotape cassettes
• Cable television

Computers and floppy disks were around, but even the mighty Apple I wasn't exactly a communications device. Yet.

This is now

You know that communications technology, and information technology, have changed in the last thirty years. Congress got the news recently, too.

FISA was updated, sort of, including a provision that covered emails from foreign sources going through American circuits. Important parts of that update lapsed last month.

FISA, the Patriot Act, and the
Protect America Act (PAA): Congressional Debate

Congress is now debating whether or not to let American intelligence agencies listen in on a calls from overseas, or read emails, without asking asking permission for a judge.

I'm concerned about "constitutional rights," but I'm also aware that one of those calls or emails might have the go-ahead to blow up Grand Central Station during Earth Week, or the Grand Ole Opry when Charlie Daniels and Del McCoury are performing, or begin some other unpleasant attack.

Here are typical headlines from today's news:

• "House to close its doors for spying bill"
  The Denver Post (March 13, 2008)
• "House sets closed-door session to debate surveillance legislation Bush threatens to veto"
  Minneapolis Star Tribune (March 13, 2008).

Part of the standard Associated Press story that goes with them:

• "President Bush plans to make a statement about the measure Thursday morning. The White House complains that the Democrats' version does not give legal protection to telecommunications companies that helped the government eavesdrop on their customers without court permission after the Sept. 11 terrorist attacks. [emphasis mine]
  "About 40 lawsuits have been filed against telecommunications companies by people and organizations alleging they violated wiretapping and privacy laws. The lawsuits have been combined and are pending before a single federal judge in California."

And, much farther down in the article:

• "The surveillance law is intended to help in the pursuit of suspected terrorists by making it easier to eavesdrop on foreign phone calls and e-mails that pass through the United States. A temporary law expired Feb. 16 before Congress was able to produce a replacement bill. Bush opposed an extension of the temporary law as a tactic to pressure Congress into accepting the Senate version of the surveillance legislation. The Senate's bill provides retroactive legal immunity for the telecommunications companies.
  "Bush said lawsuits against telecom companies would lead to the disclosure of state secrets. Further, he said lawsuits would undermine the willingness of the private sector to cooperate with the government in trying to track down terrorists." [emphasis mine]

There's an important point here, that I think should be given a great deal more emphasis. Here's what one of the players had to say about what's at stake:

• "The House's partisan legislation would extend protections we enjoy as Americans to foreign terrorists overseas and could cause us to lose vital intelligence on terrorist threats. It makes no sense to involve the court before the Government begins surveillance of foreign targets who wish to do us harm." Fact Sheet: Protect America Alert: House Foreign Surveillance Bill Undermines Our National Security - White House press release (March 13, 2008) [emphasis mine]

Those headlines, and the scary prospect that the government will make telecommunications companies "eavesdrop on their customers without court permission," may be all that many Americans will read. Avid readers may get to the "foreign phone calls and e-mails that pass through the United States" part.

The idea seems to get lost, that part of Congress wants rights guaranteed to American Citizens by the Constitution extended to people who

• Don't want to be American
• Hate America
• Are actively trying to kill more Americans

I think that's crazy: and that's a forgiving evaluation.

Get a Grip, Washington! Terrorism isn't an Election-Year Game!

Which is more important? Whether or not Ibn al-Shaykh al-Libi, Ibrahim Ahmed Mahmoud al Qosi, and Wadih El Hage got their Miranda warning? Or that they aren't running and financing Al Qaeda now?

I sometimes wonder if, two years from now, we'll be hearing some politico demanding that prisoners taken in Iraq, or Pakistan, or wherever, be given the right to vote in the upcoming election.

Finally, a few reminders from today's headlines, to remind us of what's going on, and who we're dealing with.

• "US sent severed fingers of Iraq hostages"
  LIVENEWS.com.au (March 13, 2008)
  (This is actually good news. DNA tests show that the digits belong to the hostages - and it's possible that they were alive when the fingers were removed.)
• "Body of Chaldean Catholic archbishop is found near northern city in Iraq"
  International Herald Tribune (March 13, 2008)
  (Perhaps as an indication of lessening violence, Archbishop Paulos Faraj Rahho's head seems to have still been attached to his body.)