PAUL JAY, SENIOR EDITOR: In 1978, after the Watergate scandal, Congress passed a piece of legislation that was meant to limit the way governments spied on people’s communications. The Foreign Intelligence Surveillance Act, or FISA, was very simple: in national security cases of persons communicating with foreign governments overseas, a warrant from a secret court would have to be obtained to authorize the eavesdropping. Since 9/11 and the passing of the patriot act, FISA was extended to include communications within the US. President Bush has mostly ignored the legislation and spied without warrants. Now he wants Congress to make it all legal. The issue comes to a head in Washington early this week. To tell us what’s at stake is Michael Ratner of the Center for Constitutional Rights in New York. So, Michael, the issue as I understand it’s pretty straightforward. Does the government need a warrant before it snoops on people’s emails and telephone calls? It would seem rather straightforward that if there’s a Congress controlled by the Democratic Party, and the Democratic Party claims to be the defenders of the Constitution, that there would be legislation coming this week under their leadership that would not allow the president to do what he wants to do, which is essentially violate the law. But it ain’t so simple, is it?
MICHAEL RATNER, PRESIDENT, CENTER FOR CONSTITUTIONAL RIGHTS: Well, it should be simple, and I think it’s straightforward from a constitutional point of view, that the president needs a warrant before he can snoop on people living in the United States, their e-mail, their electronic surveillance, including warrantless searches of their houses as well. At least we thought it was straightforward. We had a law. It was called the Foreign Intelligence Surveillance Act. After 9/11, the president secretly basically violated that law and said, “I don’t need a warrant” or needed a secret court or any other court to go and wiretap people or electronically surveil their conversations. That was exposed in an article in The New York Times in 2005. You would have expected, you hoped, at that time a Republican Congress, but even the Democrats as well, you would have expected people to be outraged by it. A few people were. Former Vice President Gore, for example, called it an example of tyranny. The president believed he could simply violate the law under his so-called war powers, that Congress couldn’t control him. But—surprise, surprise—Congress, even under the Democrats, a few months ago caved and gave the president temporary authority for six months—it’s called the Protect America Act. It expires on February 1. And that does allow the president to bypass the warrant requirements with regard to US citizens and US permanent residents. This Protect America Act expires on February 1, so now there’s a lot going on in Congress and a lot with regard to the president as to whether he’s going to be able to continually warrantless wiretap Americans and their e-mail.
JAY: And this is coming to a head this week.
RATNER: This is coming to a head, actually, on Monday and Tuesday of this week. There’s a Senate bill on the floor that basically gives the president authority to engage in warrantless wiretapping. It makes permanent the law that was supposed to sunset on February 1. Also, the worst of the Senate bills, which is the one that is now in play, also gives immunity to telecoms—telephone companies, AT&T and the like—for their cooperation with the government over the last number of years in warrantlessly wiretapping American citizens. Those two provisions are obviously hotly contested—not hotly enough contested by the Democrats, but by some of the Democrats. Senator Dodd in the Senate, for example, has said he’s going to filibuster any legislation that gives immunity to the telecoms or that allows warrantless wiretapping of American citizens. You need at least 41 votes to sustain a filibuster. The question is, in a Democratic Senate right now, will he get the 41 votes? The Democrats have 51 votes, but will there be enough Democrats to actually uphold Dodd’s filibuster? I think it’s unlikely. The leadership of the Democrats in the Senate, who are the leaders of the Senate, Senator Reid has essentially caved. There was a better Senate bill that he’s not allowing to be brought to the floor. If there’s a vote on Monday, which there very well could be, on something called cloture, which basically allows only 30 hours of debate on any legislation, no amendments, cuts off the filibuster, we could see legislation coming out of the Senate that does exactly the unconstitutional acts the president has been carrying out for four or five years and gives immunity to the telecoms.
JAY: Vice President Cheney spoke at the Heritage Foundation last week, defending the administration’s position on the need for FISA to be changed fundamentally and to allow the kind of eavesdropping they’ve been conducting. And here’s what Cheney said at the Heritage Foundation.
January 23, 2008
DICK CHENEY, US VICE PRESIDENT: And so the relative safety of the six years and four months since 9/11 is not an accident. It’s an achievement. And the achievement is the product of some very hard work by Americans, and intelligence in law enforcement and the military, and some wise decisions by the president of the United States. The basic problem is this: when FISA was passed 30 years ago, many domestic phone calls were transmitted by wire, and most international phone calls went by radio or satellite. Today it’s the opposite. A lot of international communications are actually routed through computers and cables inside the United States. This would mean, under the original language of FISA, that the US sometimes could not monitor without a finding of probable cause and a court order one foreign citizen abroad making a telephone call to another foreign citizen abroad about terrorism because of changes in technology. Congress never intended to grant privacy rights to enemies overseas; yet because of modern technology, the law began to have that very effect. As a consequence, much information that was important to national security simply went uncollected.
JAY: So, Michael, is Vice President Cheney raising a legitimate objection?
RATNER: Well, Vice President Cheney is essentially misleading the American people. The issue of a foreign call coming through the United States that goes to another foreigner is not really an issue here. Everybody sort of agrees they should be able to wiretap conversations of foreigners, and just because of the happenstance of routing through a US telecom, no one is heavily concerned by that issue. That’s not what’s going on with this new legislation. Yes, it will give them that, but that’s not what the argument’s about. The argument is about when a US citizen in the United States or a US resident makes a phone call overseas or receives a phone call from a foreigner, does the president have to get a warrant to wiretap or get the e-mail of a US citizen? That’s what we’re talking about. Or a US permanent resident? We’re not worried about this issue of foreigner-to-foreigner. That’s not what this is about. So Cheney is just misleading us as to what the real issue is here. That’s sort of irrelevant to the debate. And, of course, he’s not mentioning at all the immunity issue that they’re planning to give to telecoms. The immunity issue is particularly disturbing. There’s about 40 different lawsuits against telecoms who broke the law like the president did. It’s a criminal law, actually, although they’re being sued civilly for damages for breaking the law with regard to warrantless wiretapping. That should be a fundamental issue for the courts to decide. Since when does Congress come into the middle of court lawsuits and say the courts in this country aren’t good enough to decide these issues? Congress will make, essentially, what are legal, court decisions through legislation. It’s absurd. It’s completely wild, actually. Imagine that: you’re in the middle of a lawsuit, and then the Congress comes in and decides the case. Completely outrageous.
JAY: It’s very, very difficult for me to resist a John Stewart moment, which would be something about Vice President Cheney misleading the American people. But I will control myself and not go there. He does it so much better than I do anyway.
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