Elliot D. Cohen: The Tele Gate Crisis:
 Stop Bush's Electronic Surveillance Before the Next Presidential Election is Stolen    Submitted by BuzzFlash on Mon, 11/26/2007 -  

 

http://www.buzzflash.com/articles/contributors/1448

 

A BUZZFLASH GUEST CONTRIBUTION

by Elliot D. Cohen

 

About to be consummated by the Senate may be one of the most egregious, far-reaching, and dangerous attacks on constitutional rights in U.S. history. What is scheduled to take place this week on the Senate floor is a hearing about shielding telecommunication companies from both past and future criminal and civil liability for helping the Bush Administration to deploy and operate a massive computerized system of unlawful search and seizure with the potential to disrupt and destroy free elections, privacy, freedom of the press, and freedom of speech in America -- in a word, democracy.

 

The gravity of this attack on democracy in America cannot be overstated and is now by far the most serious crisis gripping this nation. Yet most Americans do not know about it. Nor is it on the evening news or being addressed by the mainstream pundits who instead speak at length about who won the last Democratic presidential debate. Sadly, it may not matter.

 

Since September 2001, and possibly earlier, AT&T, working cooperatively with the White House and the National Security Agency, has conducted monitoring of all e-mail and phone messages passing through the AT&T system, which also includes Qwest and Sprint. Making copies of all these messages and routing them for analysis to secret rooms hidden deep inside major AT&T hubs in the United States, this system has the potential to analyze message content according to predefined search criteria. Absent judicial oversight, as is now the case, these criteria could easily (and may presently be) set to find and read all messages sent by Democratic opponents of the GOP for purposes of gaining an unfair advantage in the upcoming presidential election in November 2008. Worse, this infrastructure supports interception, analysis, and reconfiguration of electronically cast votes when they are routed from individual voting precincts through the phone lines to a central headquarters for tallying. Unless this surveillance system is dismantled or placed immediately under careful, ongoing judicial watch, the outcome of voting in the next election -- and in subsequent elections -- may be as predictable as rolling loaded dice. Unfortunately, the FISA revisions currently before the Senate do not provide for the judicial oversight urgently needed to prevent the use of this system for such nefarious purposes.

 

HR 3373, the so-called Restore Act, which has recently been passed by the House of Representatives, has been scheduled for a Senate hearing this week along with the Senate's version of the bill, S. 2248, The FISA Amendments Act. Each of these bills attempts to revise the 1978 FISA law passed after the Nixon Administration to protect American citizens from being illegally spied on by government.

 

While HR 3373 does not provide for retroactive legal immunity to the telecom corporations, the Senate has so far not decided the issue. In an unanticipated recent move by the Senate Judiciary Committee, the issue was left undecided in committee and sent to the full Senate. Whether or not the Senate, in the end, grants retroactive immunity to the telecoms is profoundly important because such a grant of immunity would affectively wipe out the cause for action of at least 30 civil suits now pending against AT&T. This, in turn, would shield the Bush Administration's secret surveillance program from judicial inspection.

 

If this dangerous program is to be defused in time to salvage a fair presidential election in 2008, the Senate must now vote against including retroactive immunity in a revised FISA bill. This is not business as usual. It is of the magnitude of a national emergency!

 

But the Senate will need to do more than this. Both HR3373 and S. 2248 explicitly immunize the telecoms against any cause of action connected with any future compliance with the terms of the bill. So the Senate debate should be over not only whether to give retroactive immunity, but also prospective immunity to the telecoms. Section 3(e)(3) of HR3373 provides,

 

(3) LIABILITY OF ORDER. -- Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with an order issued under this subsection.

 

Likewise, Section 703(h)(3) of S.2248 provides,

 

(3) RELEASE FROM LIABILITY- Notwithstanding any other law, no cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

 

This grant of prospective immunity provided by both bills is exclusive, which means that it cannot be overridden by any other law -- criminal or civil. This would accordingly fully shield these companies against any future legal liability in assisting government in conducting surveillance under a directive pursuant to the law. This grant of immunity would not necessarily be a bad thing if compliance with directives issued under either of these bills reasonably ensured that the constitutional rights of American citizens would be protected. Unfortunately, both versions, in their current forms, open the floodgates for widespread abuse of privacy and voting rights.

 

In its present form, HR 3373 allows the Bush Administration to receive from the secret Foreign Intelligence Surveillance Courts (FISC) virtually blanket permission to conduct surveillance between a U.S. citizen inside the United States and a presumed non-Citizen outside the United States for up to one year when the "significant purpose" of the surveillance is to obtain information about a non-citizen situated outside the United States. And while the information obtained through the surveillance is supposed to be conducted with secret minimization standards aimed at minimizing the risk of American citizens getting caught in the dragnet, these standards appear to have little teeth in curbing abuses since they do not require destruction of the information obtained and are subjectively balanced by the government against its perceived need to obtain foreign information. Add to this that the government is not required to reveal the specific identities of persons, places, or communications under surveillance. Nor is there any provisions allowing a FISC to modify the orders or the minimization procedures if it finds a problem with either of these.

 

A loophole in the bill also permits the government to apply for emergency authorization from a FISC up to seven days after the fact whereby there is no provision for curtailing use of the information obtained should the FISC conclude that the conditions under which the surveillance was conducted did not truly constitute an emergency. This makes it possible for the government to bogusly cry "emergency" and then use the information it obtains anyway.

 

In the end, the judicial oversight requisite to protecting the Constitutional rights of American citizens against systematic and widespread government abuse, are not included in either of these bills. The government can simply rationalize the mainlining of all American communications through this system of "Total Information Awareness" as the necessary straining mechanism for accomplishing a "significant purpose" (not even the main purpose) of sifting out possible terrorists.

 

If this judicially toothless law is passed, any challenges to it are likely to be dismissed by the White House and its compliant Justice Department on this rationale coupled with an appeal to the changing tides of technology that, so it will claim, makes such an all-pervasive, surveillance dragnet necessary. In the end, we will have stolen from us our rights to freely communicate with one another and to elect our leaders.

 

Accordingly, the Bush Administration is now putting pressure on the Senate to pass a bill that provides both prospective and retroactive immunity to the telecoms, and which maximizes its freedom to conduct surveillance activities outside the radar of the courts. If the Senate helps the Bush Administration and its telecom accomplices get what they want, there may be little point to debating whether Clinton or Obama will receive the Democratic nomination.

 

So what can Americans do about the current crisis? They can help stop the Bush Administration from using Congress to immunize its dangerous surveillance activities from judicial oversight. The American Civil Liberties Union has a campaign underway to send letters to our Senators to convince them not to cave under pressure from the White House (or from the telecoms themselves), asking them not to grant retroactive immunity to the telecoms or give these companies permission to assist government in spying on us without any real checks. All Americans who care about the survival of democracy, including the right to have one's vote counted, have a moral obligation to join this campaign.

 

At the same time, members of the mainstream media have a professional obligation to resist pressures from the White House, and from the telecoms themselves with whom they partner, and to give due coverage to the story. So far these large corporate conglomerates, which are largely driven by their bottom lines, have betrayed their constitutional charge as the Fourth Estate. They must act now, immediately, before it is too late.

 

A BUZZFLASH GUEST CONTRIBUTION

 

Elliot D. Cohen, Ph.D. is a media ethicist and critic. His most recent book is "The Last Days of Democracy: How Big Media and Power-Hungry Government Are Turning America Into a Dictatorship." He is a first-prize winner of the 2007 Project Censored Award.