ACSBlog: The Blog of the American Constitution Society

by Lisa Graves, Deputy Director of the Center for National Security Studies and former Deputy Assistant Attorney General in the Justice Department's Office of Legal Policy

A dear friend of mine once asked me if I knew “the First Rule of Holes.” She said it was “stop digging.” I’m reminded of this rule now on the eve of a planned vote on a bill to restore some of the checks and balances that were eliminated in August. That was when President Bush’s (retired) admiral Mike McConnell, the Director of National Intelligence, bullied Congress into changing decades of settled US surveillance law on the claim that blood would be on the hands of anyone who dared oppose their bill.

That legislation, the so-called “Protect America Act” (PAA), blew quite a hole in Americans’ right to privacy in their international calls and e-mails and set loose the vacuum cleaners of the NSA on the American fiber optic network on the Attorney General and McConnell’s say-so. What this means is that for the past 30 years, until August, the NSA was required to present a warrant from the FISA court to acquire international and domestic calls “to or from” people in the US by accessing the “wire” here (meaning, the NSA could not intercept the fiber optic or copper cables in the US).   

That rule of FISA was the product of thousands of hours of congressional investigation into past invasions of Americans’ privacy. One example was “Operation SHAMROCK,” by which the NSA had acquired almost all international telegrams “to or from” American businesses and individuals in the name of “national security.” Congress determined that a warrant for access to calls to or from Americans was the best way to vindicate the Fourth Amendment, which had been violated in the absence of court oversight. Congress did not, however, extend that rule to radio signals intercepted outside the US—that’s because of the general territorial limits of the Constitution and because radio communications by their nature can be received by anyone with a receiver, a satellite dish or otherwise, and even then FISA barred intentional acquisition of purely domestic radio communications.

The PAA exempted itself from any of these definitions of “electronic surveillance” and “any other law,” when the NSA’s acquisition concerns at least one person believed to be outside the US. It is stunning that this law could have passed in the wake of widespread condemnation of the administration’s warrantless wiretapping program that was first revealed to the public in 2005, as the Senate was debating the Patriot Act’s changes to FISA. Reports indicate that the NSA was targeting the “conversations” of people in the US without the warrants required by law and engaged in a broader effort via the fiber optic network in the US to mine American “communications,” including private data about Americans’ associations.

The administration re-branded the “President’s Program” the “Terrorist Surveillance Program” (TSP), and began a campaign to re-write FISA to permit virtually unchecked access to the content of Americans’ international conversations as well as records of their communications. The administration “won” in August through a combination of factors: they announced an increased threat level from al Qaeda (due to their mishandling of anti-terrorism policies); they claimed a FISA court ruling unfairly limited their access to the fiber optics; and they endlessly repeated that FISA was passed “in 1978,” omitting that FISA/Patriot Act covers new technologies. At the end of McConnell’s personal arm twisting campaign, the PAA passed and largely cut Congress and the courts out of anything but a window-dressing role. The administration rejected any meaningful court oversight as if it were allergic to checks and balances.  This is really no surprise given that Vice President, David Addington, and his acolytes were involved; Addington has reportedly said before that “We’re one bomb away from getting rid of that obnoxious court.” (The FISA court has approved over 20,000 surveillance requests, more than 99.999% of all requests made under FISA’s flexible provisions.)  

Congresswoman Pelosi vowed to revise the PAA and that’s what the “Responsible Electronic Surveillance That is Overseen, Reviewed and Effective” (RESTORE) Act does. It repeals the PAA and replaces its provisions with court review of programs of electronic surveillance of Americans’ international calls and e-mails while tightening the reasons such surveillance may be authorized. It also requires that there be procedures to ensure that an individualized warrant is sought if a “significant purpose” of the surveillance is to obtain the communications of someone in the US. And, in another rebuff to the administration’s unreasonable demands, the Act does not make these provisions permanent (they would sunset in December 2009) and does not include retroactive amnesty for anyone who aided in the warrantless surveillance of Americans for the prior six years (the administration wants to bar enforcement of 50 USC 1810, which for 30 years has allowed up to $1000 per day in civil damages per violation for warrantless surveillance in violation of FISA’s exclusive procedures). 

Chairmen Reyes and Conyers, and their co-sponsors, should be commended for standing up to the administration and for their efforts to get out of the hole in Fourth Amendment rights and privacy protections dug by the PAA. It’s true that the RESTORE Act does not turn the clock back to the statutory level of protection on August 4, 2007,  but the administration wants to make the hole it dug a permanent one and even make it worse by rewarding phone companies that did not insist on warrants and immunizing Cheney, Addington, John Yoo and others. The RESTORE Act rejects this approach and instead extends the statute of limitations for prosecuting individuals who violated long-standing criminal provisions against warrantless wiretapping outside of FISA or Title III. Granted, there is disagreement among those devoted to civil liberties about whether the RESTORE Act goes far enough to get us out of that hole because it does not return to the individualized warrants specified by FISA before the PAA’s changes.    

But, now is not the time to let the perfect be the enemy of the good. If the RESTORE Act does not pass, you can be sure the next proposal given a vote will be far worse. And, the RESTORE Act would go a long way to ameliorate the flaws in the PAA while requiring a retroactive audit that now appears to be our best hope at getting the truth about the President’s Program given the White House’s refusal to comply with legitimate requests for key documents. That truth, part of a public report required by the RESTORE Act, will help us fix this in 2009 with a new Congress and President.