New Wiretapping Law: A Big Leap in Big Brotherization of Society

FISA is the Foreign Intelligence Surveillance Act, which was passed in 1978 by Congress after the exposure and protest against the government’s rampant wiretapping, break-ins, and other political police actions against a wide range of people in the mid-1970s. In part, objections to these operations were raised by forces within the ruling class who were themselves being spied on and the target of secret government operations. Vermont Senator Patrick Leahy, in speaking out against the renewal of FISA with the provision forbidding lawsuits against communications companies, said that “Through the COINTEL Program, Hoover spied on Americans who objected and spoke out against the war in Vietnam—which pretty well involved 100 percent of the Vermont delegation in Congress.” FISA provided some controls over that kind of thing, while giving free rein to American intelligence agencies to spy on foreign governments and foreign “agents”—and requiring warrants for wiretapping of “U.S. persons,” meaning citizens and legal residents. The secret court set up under FISA almost always gave the green light to surveillance warrants. In 2004, for example, the government’s own figures show that none of the 1,758 wiretap warrants was denied by the FISA court.

But the Bush regime decided, in secret, that even FISA and its court, which operates behind closed doors and had basically acted as a rubber stamp for government spying requests, put too much restriction on how freely and widely the government could snoop on people in the U.S. (and allowed for too much risk of secret government spying coming to light through “paper trails”). Right after 9/11, the White House launched the covert NSA wiretapping program that totally bypassed FISA, allowing surveillance to be carried out without even formal warrants.

Massive and Unprecedented Spying

It is important to understand the unprecedented nature and scope of the big brotherization of U.S. society through secret surveillance of people’s communications that has been taking place for years. Developments in technology have created the basis for this government to carry out very widespread surveillance and collection of phone calls, emails, and other electronic communication on a scale not seen before in the U.S. or anywhere else in the world. Some of this was brought out by former AT&T technician Mark Klein, who has spoken out publicly about the existence of a secret room at the telecommunication company’s San Francisco office, which was reserved for the National Security Agency (NSA).

When the NSA warrantless wiretapping program became public in 2005, the Bush administration defended the illegal spying by saying that it was a part of the “war on terror” and claimed it was directed at Al Qaida. Attorney General Alberto Gonzales declared, “As the President has said, if you’re talking to Al Qaida, we want to know it.” But the AT&T whistleblower revealed that the target was much broader. Klein, as described in the Washington Post, “alleged that the NSA set up a system that vacuumed up Internet and phone-call data from ordinary Americans with the cooperation of AT&T. Contrary to the government’s depiction of its surveillance as aimed at overseas terrorists, Klein said, much of the data sent through AT&T to the NSA was purely domestic. Klein said he believes that the NSA was analyzing the records for usage patterns as well as for content.” According to Klein, the largest of the links set up by the NSA in the AT&T secret room carried 2.5 gigabits of data—the equivalent of one-quarter of the Encyclopedia Britannica’s text—every second. Klein told National Public Radio that all internet and phone communication going through the AT&T facility was being funneled to the NSA, and that millions and millions of domestic phone calls are being monitored by the NSA. (“All Things Considered,” November 11, 2007)

This secret NSA room at AT&T was only one part of the whole NSA operation—other companies, like Verizon and BellSouth, were involved. (One company, Qwest, refused to cooperate.) Today, international electronic communications to and from the U.S.—as well as a lot of communications between locations outside the U.S.—are routed through giant “switches” located in the U.S. and operated by those companies. The NSA eavesdropped by “latching on” to those switches that handle huge amounts of calls, emails, and Internet traffic each day. The intercepted communications were sent to Fort Meade in Maryland, where the NSA runs the largest accumulation of computer power on the planet.

And the warrantless wiretapping program that came out into the open may be only one aspect of the extensive secret surveillance being carried out by the NSA and other agencies. The Electronic Frontier Foundation points out that “numerous news reports have described a far wider program, which surveils the communications of ordinary Americans.”

The NSA’s warrantless wiretapping went on in secret for four years. When it was exposed, the Bush regime began a drive to legitimize this massive warrantless surveillance through a law (just as torture was legalized and legitimized through the 2006 Military Commissions Act).

Outrage Short-Circuited by Democrats

The exposure of the illegal NSA wiretapping sparked widespread outrage throughout society. The massive surveillance of the communication of millions and millions of people in this country rightly evoked visions of draconian, hated, and repressive regimes who feel compelled to broadly spy on their subjects. At the same time, this exposure—in the form of a New York Times article which said that someone high up in government had leaked the information—pointed to real struggle at the top, among the ruling class imperialists. Bush and others hurled thinly veiled accusations of “treason” against the Democrats and the Times itself, while top Democrat Al Gore declared that Bush “has been breaking the law—repeatedly and insistently.” (In the course of the controversy, the Bush crew pointed out that the Clinton/Gore administration had set a precedent for what they were doing by also conducting illegal, warrantless wiretapping, on a smaller scale.)

But this struggle at the top was within very narrow bounds. The rulers and their political representatives all agree on the need for agencies like the NSA, which exist to spy on their imperialist rivals and other foes around the world, as well as on the political movements of the people. And they all agree on the need to expand and “modernize” this surveillance activity, as part of the overall “war on terror”—which in reality is a war by the U.S. rulers as a whole to create an unchallenged and unchallengeable global empire, starting with dominating the Middle East. What Bush’s critics objected to about the warrantless wiretapping was that by bypassing FISA, Bush didn’t follow the existing rules on how to do such spying. They said that had Bush followed those rules, the FISA court would have granted the huge majority, perhaps all, of Bush’s requests. What concerned them was that he simply claimed for himself the right to violate the legal rules AND that he could turn—and probably already had turned—the massive technological spying apparatus of the NSA not just against the people, but against his ruling class counterparts and rivals.

Unfortunately, in large part the mass outrage at the NSA wiretapping got short-circuited into supporting the Democrats in the 2006 election because people were drawn in by promises made by top Democrats that if they got control of Congress, something would be done about this. Nancy Pelosi, for example, in a January 18, 2007 Op-ed in the Washington Post said that the uproar over the warrantless spying program was “a wake-up call for intensive congressional oversight of intelligence activities.” But this Democratic opposition to Bush was strictly within the terms of the ruling class debate over the legal guidelines for the activities of U.S. spy agencies—and these reactionary terms were what people supporting the Democrats got sucked into.

And now, with the new FISA Amendments Act, we see the results of all this. The Democrat-controlled Congress has passed a law that lays down new rules within the ruling class for how to do spying—rules which legalize the massive and unprecedented government surveillance of communications of people in the U.S. that was previously illegal.

Immunity—and Cover-up

In March of this year, the House passed an earlier version of the FISA Amendments Act—but Bush threatened to veto that bill because it did not include, as he demanded, immunity for telecommunication companies that are facing nearly 40 lawsuits because of their participation in the illegal NSA spying program. (The Senate had earlier approved a version that included immunity.) The situation had been at an impasse since then—until now. Nancy Pelosi took the lead in pushing the bill containing the immunity provision through the House. In the Senate, some Democrats, including the majority leader Harry Reid, voted against the bill—but did not take any extraordinary measures to stop it. Others (including Barack Obama, who had earlier pledged to oppose any bill giving immunity to the companies) joined in the 69 to 28 vote for the bill. (See accompanying article.)

The media coverage of the new law has focused on the question of immunity for the telecommunication companies. Under this law, the companies would have immunity if they can simply show in a federal district court that they received a government request “indicating that the activity was authorized by the President.” Since it is public knowledge that Bush officials did issue those requests, it’s pretty much guaranteed that the lawsuits against those companies would be dismissed.

The immunity provision is totally outrageous, but this is about much more than the Bush regime helping big corporations shield themselves from costly lawsuits. Michael Ratner of the Center for Constitutional Rights pointed out, “So that means we’re never going to really know about the 5 or 6 years in which this illegal program was run. We’re not going to get the underlying memos, and the government is still going to be allowed to use all the information. So that immunity provision is actually huge.” (therealnews.com, June 26, 2008) In other words, the immunity provision is aimed at a cover-up of the actual details of the NSA program—who authorized and knew about it, how much and what information was collected, etc.

Repressive Reality Behind the “Compromise”

The Democratic backers of the new law justify their support (and reversal on the immunity issue) by saying it is a “compromise” that includes certain provisions that supposedly increase the “oversight” of the NSA surveillance and somewhat stricter rules on surveillance of U.S. citizens. But, in fact, the reality behind this talk of “compromise” is a major expansion of the repressive powers of the government.

For one thing, as Michael Ratner points out, the law “allows 7-day emergency wiretapping without any kind of warrant. And the emergency wiretapping continues when the U.S. government goes into the secret court, continues while appeals are pending…. So literally you could be wiretapping American citizens for months or longer without any kind of warrant.”

Under the new law, the FISA court will not review individual surveillance warrants with specific information in most cases but only general “procedures” to see whether they are “reasonably designed” to ensure that the target of the spying is located outside the U.S. The law allows the NSA to pick up communications of people in the U.S., as long as the target of the surveillance is overseas. Even if the FISA court rejects the general “procedures” for a particular spying operation, the government can continue the surveillance through the whole appeals process—and keep and use whatever information was gathered during that period.

In an interview with Revolution, Center for Constitutional Rights lawyer Shayana Kadidal spoke about the significance of this change (he was speaking about the version of the FISA Amendments Act earlier this year, but his point applies to the new law). Kadidal pointed to how things worked previously with individualized warrants: “Namely, when the government decides to surveil a single target, a single person, and they produce some level of evidence to the FISA court that the person is working for a foreign power or foreign terrorist organization, defined very broadly by the FISA statute. Then the court can issue an individual order saying you can surveil that one person.” This is now changed with the new law: “It’s a tremendous departure, in terms of the history of wiretapping regulations—in the FISA Amendments Act, the government is now allowed to go to the court and ask for approval of an entire program of surveillance. So they’ll come to the court saying: We want to surveil every person who calls from Afghanistan to the United States in the middle of the night, when the person they call calls five other people within 15 minutes. Some sort of criteria like that, very generalized, that could apply to hundreds and hundreds of cases every day, where the government may not even have any idea of who the person is who is being surveilled.”

With the new law, the government can spy on international phone calls and emails of anyone in the U.S. in order to “acquire foreign intelligence information,” as long as the “target” of that surveillance is a person or a group “reasonably believed to be located outside the United States.” There is no requirement that the government show “probable cause”—some evidence that a crime has been committed. Caroline Fredrickson, Director of the ACLU Washington Legislative Office, said, “Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so.”