Why the new wiretapping law is a lot worse than you think.

The law, lawyers, and the court.
June 25 2008 3:12 PM

Five Myths About the New Wiretapping Law

Why it's a lot worse than you think.

Steney Hoyer. Click image to expand
Rep. Steny Hoyer

Sometime today, the Senate is likely to approve the most comprehensive overhaul of American surveillance law since the Watergate era. Unless you're a government lawyer, a legal scholar, a masochist, or an insomniac, chances are you haven't read the 114-page bill. Don't beat yourself up: Neither have most of the 293 House members who voted for it last week. Ditto the mainstream press, who seem to have relied chiefly on summaries provided by the same lawmakers who hadn't read it.

To be fair, wiretapping is so classified, and the language of the bill so opaque, that no one without a "top secret" clearance can say with any authority just how much surveillance the proposal will authorize the government to do. (The best assessment yet comes from former Justice Department official David Kris, who deems the legislation "so intricate" that it risks confusing even "the government officials who must apply it.")

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Out of the echo chamber of ignorance and self-serving political cant, a number of myths have begun to emerge. We may never know for sure everything that this new legislation entails. But here are a few things that it most certainly doesn't.

Myth No. 1: This bill is a compromise.

The House bill "is the result of a compromise," one of its architects, Steny Hoyer, D-Md., maintained the other day. But in truth, Hoyer and his colleagues gave the White House most of what it asked for, dramatically expanding the government's surveillance capabilities without demanding any serious concessions in exchange. Sen. Russ Feingold, D-Wis., calls the deal "a capitulation," and he's right. Why else would the White House express its approval so quickly, after a full year in which President Bush petulantly vowed not to sign any legislation that obliged him to concede too much? Sen. Kit Bond, R-Mo., offered an honest appraisal: "I think the White House got a better deal than even they had hoped."

Myth No. 2: We need the bill to intercept our enemies abroad.

One frequent refrain in favor of the new legislation is that without it, America's intelligence capabilities will dry up, leaving the country vulnerable to attack. The National Security Agency wants to intercept communications that pass through routers in the United States, even when both parties to the communication are abroad. The administration has argued that the NSA should not have to obtain a court order to intercept those communications. Seems reasonable, right?

Of course it's reasonable. So reasonable, in fact, that House Democrats proposed to fix the problem a year ago. They were rebuffed. Why? Because their plan contained too much judicial oversight. (They ended up folding, just as they have this time around.) So when people say that this legislation is all about exempting foreign-to-foreign communications that happen to pass through the United States from the warrant requirement, don't buy it.

You see, the new law goes a lot further, basically doing away with warrants altogether in the domestic-to-international context. Under the proposal, the NSA can engage in what David Kris calls "vacuum cleaner surveillance" of phone calls and e-mails entering and leaving the United States through our nation's telecom switches. Provided that the "target" of the surveillance is reasonably believed to be abroad, the NSA can intercept a massive volume of communications, which might, however incidentally, include yours. When authorities want to target purely domestic communications, they still have to apply for a warrant from the FISA court (albeit only after a weeklong grace period of warrantless surveillance). But where communications between the United States and another country are concerned, the secret court is relegated to a vestigial role, consulted on the soundness of the "targeting procedures," but not on the legitimacy of the targets themselves.

This is a huge departure from FISA. As Glenn Greenwald argues in Salon, the underlying suggestion of the new proposal is "not that the FISA law is obsolete, but rather, that the key instrument imposed by the Founders to preserve basic liberty—warrants—is something that we must now abolish."

Myth No. 3:The courts will still review the telecom cases.

Perhaps most controversially, the bill effectively pardons the telecom giants that assisted the Bush administration in the warrantless wiretapping program. They will now be shielded from dozens of civil lawsuits brought against them after their involvement was exposed. House Democrats insist that the telecoms are not automatically getting off the hook. Instead, the companies must go before a federal judge. But here's the catch: For the suits against them to be "promptly dismissed," they must demonstrate to the judge not that what they did was legal but only that the White House told them to do it.

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