Defiling our Liberty and our Security: Overview and Analysis of the 2007 Protect America Act

Yesterday, the Associated Press and other news organizations reported that President Bush signed a bill stampeded through the House and Senate that allows warrantless domestic electronic spying, called the 2007 Protect America Act (PAA 2007), by the National Security Agency to take place for up to 6 months.

By itself, this news is frightening, but when one bothers to take a closer look at the law, there are several other eye-popping provisions to worry about. According to the Boston Globe:

  • …the law requires telecommunications companies to make their facilities available for government wiretaps, and it grants them immunity from lawsuits for complying. Under the old program, such companies participated only voluntarily…
  • Second, Bush has said his original surveillance program was restricted to calls and e-mails involving a suspected terrorist, but the new law has no such limit… Instead, it allows executive-branch agencies to conduct oversight-free surveillance of all international calls and e-mails, including those with Americans on the line, with the sole requirement that the intelligence-gathering is ‘directed at a person reasonably believed to be located outside the United States.’ There is no requirement that either caller be a suspected terrorist, spy, or criminal.
  • The law requires the government to delete any American’s private information that it picks up, but it contains an exception allowing agents to maintain files of information about an American that has foreign intelligence value or that may be evidence of a crime.
  • As a check against abuse, the law requires Attorney General Alberto Gonzales and Michael McConnell, director of national intelligence, to design procedures for the program and to submit them for review by a secret national security court that normally approves warrant applications for intelligence-related wiretapping on US soil.”

Furthermore, the Baltimore Sun notes:

  • The conversation does not have to be about terrorism, just a matter of foreign intelligence interest.
  • The attorney general and the director of national intelligence have four months to submit to the secret national security court guidelines for determining what surveillance can take place without a warrant. The court then has six months to approve those procedures and cannot reject them unless it finds that the government has made a clear error in drawing them up, a legal standard critics say will make it nearly impossible for the executive branch to be denied. … A little-noticed provision in the new law also suggests that warrantless physical searches of homes and businesses inside the United States may be allowed if the investigation concerns a foreign target of an intelligence investigation, a congressional aide said.

It’s hard to know where to start with what’s wrong with this picture, but my first observation is that clearly there are no provisions for protection against both electronic and physical search and seizure.

Also, the accountability itself is non-existent. Yes, it’s true that calls being picked up by the NSA are supposed to be deleted, but that little provision about maintaining files of information that has “foreign intelligence value or crime” is crucial, especially since foreign intelligence value is a both broad and subjective measure.

In 2002, a USA Today article discussed how Al-Qaeda was successfully able to elude the NSA’s surveillance methods largely because “the typical al-Qaeda intercept is that it lacks specific information, and what information is conveyed can be misinterpreted. A translator who picks up a message from a known al-Qaeda phone in Afghanistan that ‘the wedding party is tomorrow’ may be onto a major terrorist operation — or to an actual marriage. Telling the difference requires an understanding of idiom and inflection.” (In fact, McConnell himself explicitly acknowledged this problem in a Foreign Affairs article, shortly before the PAA 2007 was passed.)

Even worse, having AG Gonzales and Director of National Intelligence McConnell design the procedures for guarding against abuse is nothing short of having the fox guarding the henhouse. Given the former’s history of poor memory and misstatements and latter’s institutional lack of interest in privacy and civil liberties (his job is find information about people, not protect it)–perhaps evident in allegations over back peddling with Democrats to include better provisions to protect liberties in the PAA–this is simply a disaster in the making.

Though I am troubled that this law compromises our right to privacy and other liberties, I am also alarmed that the PAA 2007 will also worsen our national security. That’s right–the PAA 2007 makes us less free and less safe.

The extent to which NSA wiretapping contributes to counterterrorism operations, may be overblown. As the USA Today article pointed out, even if you get the correct information, (only 1% of an estimated 48 million communications intercepted daily gets decoded and analyzed) it’s difficult for analysts to truly know if the conversations they are listening to are foreign intelligence value or not. Even so, the NSA is not suited to intercept Al-Qaeda’s other low-tech means of communication because they “learned to evade U.S. interception technology––chiefly by using disposable cell phones or by avoiding phones altogether and substituting human messengers and face-to-face meetings to convey orders.” Finally, it’s important to emphasize that getting the proper intelligence is necessary, but analyzing it, investigating it and disseminating it to the right people are also imperative. Failing to do these other three steps were major factors that led to the 9/11 [PDF] and 7/7 attacks.

So far the NSA’s intelligence vacuum has sucked up a massive volume of useless information that led FBI officials nowhere, wasting limited resources and time. Furthermore, the domestic spy operations put an enormous technical strain on the NSA’s resources, forcing the agency to consume voracious amounts of electricity–on top of dealing with its current computer problems–to sustain its current operational capacity. This jeopardizes our national security by running the risk of another electrical overload, similar to the one that paralyzed the agency seven years ago and left our nation vulnerable for nearly three days.

To boot, in May 2006, based on a 28-page internal NSA report, the Baltimore Sun revealed the massive spy agency is in a decrepit state due to massive management problems. These massive management problems, according to the report, led to failures to implement crucial technological upgrades, lack of trust between employees and their bosses, lack of common vision, and cost overruns.

In light of all of this, we have to very seriously ask ourselves and our lawmakers: Do we really want to be giving this agency so much power with such little oversight? I think not. Allowing a disorganized agency whose intelligence contributions to counterterrorism operations are highly disputed with an unclear mission to have enormous powers with little accountability or oversight is not only bad for our civil liberties, its bad (if not worse) for our national security. The American people must demand better from our lawmakers by pressuring them to repeal this odious law and demand real reform in our intelligence agencies that includes strong checks and oversight to protect American’s freedoms.


Alejandro Beutel is program assistant for the Minaret of Freedom Institute with expertise in religious freedom, democratization and security issues.






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