"My Client is Liberty"
columnist: Roger Roots

Topic: National Security
On Warrantless Wiretapping

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Roger Roots discusses the latest developments in the FISA wars

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by Roger Roots
(libertarian)
Monday, February 18, 2008

ON WARRANTLESS WIRETAPPING

By Roger Roots

Living in Livingston, Montana, I must confess that I never miss a wink of sleep worrying about terrorism in my own life. The notion that we in this idyllic setting need fear al-Qa'eda, Hamas, Islamic Jihad or any other nebulous terrorist threat is, quite frankly, preposterous. Ludicrous. Farcical, really. In fact, if any of these people or organizations became so frustrated that they would launch an attack in Park County, Montana, I would then know immediately that they had reached a stage of utter desperation and global irrelevancy.

No, the fear of terrorism is a fear that must be felt somewhere else. But where? It appears to be expressed most loudly not from any potential victims, but from their would-be protectors. That is to say that the most common source of expressions of fear of terrorism appears to be government officials. Especially government officials who seek more power and unchecked authority for themselves. Such heroes never stop telling us we are in danger at every moment.

This is quite ironicor maybe predictablegiven that the average person in the world is more likely to be murdered by his own government than by any other source. Statistically, governments and not criminals, terrorists, or soldiers from any foreign country, are the greatest source of danger most people will ever face in their lives. University of Hawaii Professor R.J. Rummel has documented the fact that during the twentieth century alone, governments murdered more than 150 million of their own citizens, generally pursuant to claims that they were "protecting" their citizenry from some threat.

Thankfully, this is not true in the United States. We live under governments where power is separated, or at least is supposed to be separated. The Founding Fathers made it that way so that no one official or agency could ever wield dictatorial powers.

But last week, the President proclaimed yet again that "our country is in more danger of an attack" if the U.S. House of Representatives refuses to pass a bill immunizing the nation's telecommunications companies from lawsuits for their illegal warrantless wiretapping on behalf of the Bush Administration. These companies are presently being sued (in various lawsuits nationwide) for violating their customers' constitutional rights by providing their customers' phone and internet communications to the government without warrant, subpoena or court order.

The New York Times broke the startling story in December 2005. The executive branch has been openly wiretapping without warrant any communication(s) it wants to since at least 9/11 and probably before. It has done so by secretly demanding that the nation's telecommunications providers "cooperate" by handing over their private communications data. This is even while every executive-branch agent (including Attorney General Alberto Gonzalez) who testified before congressional committees claimed under oath he was following the law that requires warrants to engage in such surveillance. The Times had sat on the story for more than a year in fear of retaliation by the Justice Department. After the story went public, the Bush Administration announced publicly that federal grand juries were indeed looking into the New York Times as a criminal suspect.

Warrantless eavesdropping on domestic phone and email communications is prohibited by a number of laws (including the Fourth Amendment itself). But the primary focus of the recent controversy has involved the Foreign Intelligence Surveillance Act of 1978 ("FISA"). Under FISA, it is a felony for anyone to wiretap any domestic phoneline without warrant, court order or subpoena after an initial 72 hour grace period (for "emergencies"). (This grace period was expanded from 24 hours by the Patriot Act in 2001 and will be essentially infinite if Congress passes the bill in question (shamelessly called the "Protect America Act"). Every telecom company that handed over its customers' communication data to the government without warrant was committing a felony as well as violating contractual privacy agreements with its own customers.

FISA established a court system (the "FISA court") with special judges who are expected to be available at all hours of the day and night to process warrant applications. The FISA court has never in its entire history turned down a single warrant application. Thus the notion that the Bush Administration has been evading the FISA Court process due to unnecessary high warrant standards is patently ridiculous. Rather, it is obvious that the Bush Administration has been evading the FISA warrant process in cases where the Administration's wiretapping does not fit into the two meager legal requirements of a FISA warrant. Either the target of the eavesdropping is not a foreigner or "agent of a foreign power," or the target is not actually suspected of spying or terrorism. It is noteworthy that warrant applications meeting these two legal requirements are being processed (granted, actually) by the FISA Court at an unprecedented rate.

Does anyone really believe the Administration's claim that the communications they've been monitoring are merely "foreign" "overseas" or "terrorist" communications? Even the press reports that are most sympathetic to the Bush Administration state that these wiretaps and surveillance cover "phone calls and e-mails that pass through' the United States." The technicians on the ground have admitted that giving the government access to emails and phone traffic that "passes through" the United States effectively gives the government access to all phone and email traffic within the United States. At least one whistleblower has stated he personally helped reroute all internet and phone traffic at AT&T into split circuitry enabling the National Security Agency to monitor all of the company's customers' communications. We have reason to believe that Verizon, BellSouth and probably other major companies have given the government access to vast databases of domestic communications records, including purely domestic phone and Internet traffic. In any case, the legislation the Administration is demanding from Congress will provide no way for either the judiciary or the legislative branch to monitor whether the warrantless wiretapping by the executive branch is limited to foreign calls or not.

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©2008 Roger Roots, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Monday, February 18, 2008
Last modified: Monday, February 18, 2008

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