The Real Deal on Wiretapping Expansion

05/25/2011 12:10 pm ET

The Bush administration is trying to pull yet another fast one. And Congress appears to be taking the bait.

After intensive lobbying by the White House, the intelligence community, and the corporate telecom giants, Congress may enact revisions this week to the Foreign Intelligence Surveillance Act, or FISA, that would allow the widespread interception of your overseas phone calls and emails without any judicial review whatsoever.

What is perhaps even more unfortunate is the extent to which the proposed changes are based on misinformation, dissembling and outright falsehoods by administration officials eager to cut corners and avoid judicial oversight or public scrutiny.

For instance, Michael McConnell, Director of National Intelligence, wrote in the Washington Post that: "In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries. We are in this situation because the law simply has not kept pace with technology."

That statement, which lies at the heart of the administration's argument, is plain wrong.

First, it deliberately avoids clarifying that court orders under FISA, which can be acquired quickly and with scant evidence, are required only when one party is on American soil. As a matter of longstanding constitutional law, communications that pass entirely over foreign territory may be intercepted without any court review here. That has been so from time immemorial (or at least since 1776).

Second, FISA, again as a matter of law, is entirely technologically neutral. Sure, technology has advanced markedly since passage of FISA in 1978-beepers have gone the way of the dodo and iPhones are all the rage. But the fundamental way in which electronic communications are transmitted has not.

If you go to the books, something that DNI McConnell has clearly not done, the actual statute defines "electronic surveillance" as the interception of communications that travel over "wire or radio" by "electronic, mechanical, or other surveillance device."

Now, the term "wire or radio" covers any medium of transmission. Any electronic communication you make-email, a telephone call, a text message, your instant messages over Google Talk, AIM or Skype-travels over the same wires and airwaves. Whether the signal is carried over fiber optics, a microwave relay or through a garden variety twisted-pair phone wire, FISA can get at it.

In addition, the inclusion of "electronic, mechanical, or other surveillance device" covers basically anything the intelligence community can come up with-from a tin can on a string, to a parabolic microphone, to a satellite, to software on an email server that searches each message for words like "bomb" or "terrorist."

The Fourth Amendment protects all Americans to be secure in the privacy of their thoughts and things when they have a "reasonable expectation" of privacy.

If you live in Topeka, the fact that your phone call is directed at New York versus Montreal ought to be immaterial in determining whether you have that expectation. Of course you do. Now, if you make a call from London to Montreal, do you have the same protection? No, and I think most of us would agree that that makes sense.

But the proposal being recklessly bandied about by the intelligence community would turn that on its head. It would completely exempt those Topeka-Montreal international calls from any legal protection. The NSA could grab them up at will. There would be no oversight. And there would be no accountability for abuse.

That's too much discretion for an intelligence community that has proved simply incapable-because of bureaucratic competition, groupthink and ends-justify-the-means ideology-to police itself.

That this Democratic Congress is even considering Director McConnell's proposed changes is, for lack of a better word, a disgrace. Just this week we discovered that even the secret intelligence court has rebuffed the administration's request to scoop up unidentified foreign to U.S. calls through some still-secret dragnet. Congress, ostensibly a level-headed check on executive overreaching, got rolled on the Patriot Act and now is about to get rolled on a brave new world of warrantless wiretapping.

Even worse, it is about to get rolled by a White House and intelligence community that does not enjoy the trust of the American people. Attorney General Alberto Gonzales lied to Congress about the NSA's activities. Director McConnell has deliberately misled Congress and the American people time and again in a misguided game of legislative brinksmanship. President Bush's approval numbers are hovering in the low 30s. The entire executive branch is under a cloud.

And now the Congress is poised to give it even more power to spy on Americans without checks and balances. To your shame, sirs and madams, to your shame.