[NYTr] Bush's Spying Hits Americans Abroad

[All the News That Doesn't Fit]

Consortium News - Oct 19, 2007
http://www.consortiumnews.com/2007/101907.html

Bush's Spying Hits Americans Abroad

The Bush administration's angry reaction to a seemingly innocuous
amendment to a surveillance bill suggests that a little-noticed
goal of last August's "Protect America Act" was to authorize spying
on Americans who venture abroad.

By Robert Parry

In August after the Democratic-controlled Congress caved in to George
W. Bush’s demands for broader surveillance powers, I noted that the new
authority went far beyond what was advertised and that the President
could obtain year-long spying orders on Americans who ventured outside
the United States.

My analysis, which was based on a reading of the law’s language, wasn’t
shared by commentators in the major U.S. news media and even drew some
reader criticism as alarmist for failing to take into account secret
“minimization” provisions that supposedly would protect American
citizens.

However, the Bush administration’s hostile reaction to a seemingly
innocuous amendment added to a new surveillance bill by Sen. Ron Wyden,
D-Oregon, suggests that targeting Americans who travel abroad was a key
goal of Bush’s “Protect America Act of 2007.”

Wyden told the New York Times that his amendment would require the
government to get a warrant whenever it wants to wiretap an American
outside the country, such as a U.S. soldier serving overseas or an
American on a business trip.

“The individual freedom of an American shouldn’t depend on their
physical geography,” Wyden told the Times. He said his amendment passed
on a 9-6 vote in a closed Senate Intelligence Committee meeting on Oct.
18. [NYT, Oct. 19, 2007]

After the committee vote, the Bush administration and a key Senate
Republican took direct aim at Wyden’s provision.

“We have strong concerns about that amendment,” said White House
spokesman Tony Fratto. “We certainly could not accept it.”

Sen. Christopher Bond of Missouri, the ranking committee Republican,
said Wyden’s amendment was “problematic” and could scuttle the entire
bill if not changed.

In other words, the seemingly loose phrasing of the Protect America Act
wasn’t just an oversight or something that would be cleaned up with
some internal technical adjustments. Rather, it was an important
feature of the legislation that was slipped past the Democratic
leadership and most of the Washington press corps in August.

The law states: “Notwithstanding any other law, the Director of
National Intelligence and the Attorney General may for periods of up to
one year authorize the acquisition of foreign intelligence information
concerning persons reasonably believed to be outside the United States.”

The law’s advocates claimed that this provision was intended to
intercept communications when at least one party was linked to a
terrorist group or a terrorist affiliate and was outside the United
States.

No Terrorist Wording

But the law’s language didn’t limit the surveillance to “terrorists” or
“enemy combatants” – indeed those words were not mentioned in the
legislation.

Nor does the Protect America Act, which was drafted by the Bush
administration’s national security team, specify what happens to a
one-year surveillance order against a target if the person then enters
– or returns – to the United States.

In the rush to wrap up legislative business before the August recess –
and to avoid “soft on terror” accusations – Democratic congressional
leaders offered only cursory attention to what this provision meant and
what new abuses might become possible.

For instance, could a one-year surveillance order be issued against an
American attorney who was representing a Guantanamo detainee and who
traveled to Europe for a legal conference? Could the surveillance order
follow that person back home? How about an outspoken peace activist who
visited a friend in Canada, or a senator meeting with a foreign leader,
or a journalist filing stories from overseas?

The only limitation on the administration’s authority is the need to be
seeking “foreign intelligence information.” Though the term does cover
information about possible hostile acts by a foreign power or an agent
of a foreign power, such as terrorism or clandestine intelligence
activities, the phrase can be interpreted in a far looser way.

The term can be defined broadly as information about a foreign power
that relates to U.S. national defense, national security or the conduct
of foreign affairs. In today’s world, those categories could mean
pretty much anything.

Other supposed safeguards in the Protect America Act might not be
reassuring to its targets, either.

While the targets are kept in the dark about the surveillance, their
communications providers – such as phone companies or e-mail services –
can challenge the government’s order if they’re willing to absorb the
expense and offend the Executive Branch, which often has giant
contracts with the same providers.

Even then, the service providers, which aren't told the classified
basis for the surveillance order, can only contest the surveillance on
procedural grounds through the secret channels of the court created by
the Foreign Intelligence Surveillance Act, with appeals of adverse
rulings allowed by either side up to the U.S. Supreme Court.

Lawsuit Immunity

But service providers get a strong incentive not to challenge the
government’s order. While a legal challenge on behalf of an
unsuspecting client could be expensive – especially if the Bush
administration retaliates by shifting contracts to a competitor – the
legislation grants immunity from liability to any service provider who
complies.

“Notwithstanding any other law, no cause of action shall lie in any
court against any person for providing any information, facilities, or
assistance in accordance with a directive under this section,” the law
states.

In other words, if spying targets later discover that their service
providers gave the government access to their phone calls and e-mails,
they have no grounds to sue, regardless of how unjustified the
surveillance may have been.

Initially, administration officials said their goal in pushing through
the new law was to address a glitch related to cases in which two
terror suspects, both abroad, have their communication routed through a
U.S. switching point and thus might require a warrant.

Citing this vulnerability, President Bush demanded that Democrats
revise FISA before leaving for the August recess. Democrats thought
they had reached a compromise that would address the administration’s
narrow concern, but the White House and the congressional Republicans
then demanded more sweeping changes.

The Senate caved in first, voting 60-28 to authorize Bush’s broader
spying powers, with many centrist Democrats joining a solid phalanx of
Republicans. (Presidential contenders – Sens. Hillary Clinton, Barack
Obama, Chris Dodd and Joe Biden – voted no.)

On Aug. 4, Bush then turned up the heat on the House. He called the
spying powers contained in the bill crucial weapons in the fight
against terrorism and declared that “protecting America is our most
solemn obligation.”

Many Americans would disagree, arguing that the most solemn obligation
is to protect the Constitution and the Bill of Rights. But the
Democratic congressional leaders acted as if their highest priorities
were getting away for the August recess and avoiding ugly attacks on
their patriotism from Fox News and the right-wing media.

Instead of canceling the recess – and using the month of August to
fight over both Bush’s extraordinary expansion of presidential powers
and the Iraq War – House Democratic leaders brought the Senate-approved
Protect America Act to the floor. It carried, 227-183, with 41
Democrats backing Bush’s bill.

Trying to put the best spin on their defeat, Democratic leaders pointed
to their one concession: a sunset provision that required Bush to seek
renewal of his powers in six months. Still, the Democratic “base” and
many other Americans were furious at the latest cave-in, sending House
Speaker Nancy Pelosi more than 200,000 angry e-mails.

Stung by the reaction, Democratic leaders promised that the spying law
would be revisited immediately after the August recess, rather than
waiting around for a required reauthorization in February 2008.

New Concessions

Now, however, the Senate Democrats appear headed toward another major
concession to Bush, making retroactive the legal immunity for
telecommunications companies that collaborated with the
administration’s warrantless surveillance over the past six years.

Sen. Jay Rockefeller, D-West Virginia, Senate Intelligence Committee
chairman, shepherded this new concession through his panel, which
approved a revised version of the Protect America Act on a 13-2 vote
with Wyden and Sen. Russ Feingold, D-Wisconsin, voting no.

The bill now goes to the Senate Judiciary Committee, which also has
jurisdiction. Sen. Dodd, D-Connecticut, has vowed to put a hold on the
bill to block the retroactive immunity provision.

But the Democrats will face the same dilemma that has stymied their
attempts to end the Iraq War. The Republicans are in the driver’s seat
because they can filibuster in the Senate, forcing the Democrats to
round up 60 votes on anything that restricts the President’s powers,
such as Wyden’s amendment.

The GOP also has used parliamentary maneuvers in the House to delay its
consideration of a different surveillance bill that includes more
constraints on Bush and leaves out the amnesty for telecommunications
companies.

Even if a new bill not to Bush’s liking can clear those hurdles, he can
veto it, requiring two-thirds majorities in both houses to override.

An impasse would leave the Democrats back where they started. Then,
with the law set to expire in February 2008, Bush and his political
allies would taunt them as “soft on terror” – and there’s little reason
to believe that congressional Democrats will show more backbone in an
election year.


[Robert Parry broke many of the Iran-Contra stories in the 1980s for the
Associated Press and Newsweek. His latest book, Neck Deep: The
Disastrous Presidency of George W. Bush, was written with two of his
sons, Sam and Nat, and can be ordered at neckdeepbook.com. ]