Even though the Democrats are now in charge, President Bush has not lost his ability to bully Congress into passing national-security legislation against its better judgment.
By threatening to keep Congress in emergency session during its August vacation — a power that’s supposed to be used only for matters of grave national importance — he stamped the lawmakers into an 11th-hour rewrite of the Foreign Intelligence Surveillance Act, the law governing national-security eavesdropping.
The rewrite effectively ratifies the Bush administration’s secret decision to ignore FISA but gives the government expanded powers to conduct warrantless wiretapping.
Previously, the National Security Agency was supposed to obtain warrants from a secret FISA court to eavesdrop on communications between the United States and overseas. In January, that court reaffirmed that the administration did indeed have to get warrants.
Now the authority to approve wiretaps rests with the attorney general — hardly a reassuring prospect given Alberto Gonzales’ performance in that office — and the director of national intelligence, and so does the authority to compel the telecommunications companies to comply.
The FISA court’s role has been limited only to reviewing the procedures under which the attorney general and intelligence director make their decisions and not the individual cases.
Under the old interpretation, the NSA’s warrantless wiretaps were limited to communications between the United States and overseas in which one party was suspected of being a member of al-Qaida or a related terrorist organization. Now the terrorism hurdle has been removed and the communication must involve “foreign intelligence,” which could mean almost anything.
Given the Bush administration’s expansive view of its own powers and its tendency to reserve the right to ignore inconvenient laws, this FISA rewrite is an open door to unlimited eavesdropping.
There are two obstacles to giving the administration unfettered access to Americans’ overseas phone calls, e-mails, text messages and podcasts. Telecommunications firms, worried about the liability of letting feds eavesdrop on their customers without a court-approved warrant, may challenge the law in court. And the new powers in the law are set to expire in six months.
That gives Congress time to give the law the careful consideration it didn’t get this time around. But Congress may be unable to find out how well or ill the law is being administered. It backed down on a provision requiring regular audits of the law, including such basic information as the number of wiretaps.