White House Says Phone Wiretaps Will Resume For Now

austinhook brings us news that the U.S. government has resumed wiretapping with the help of telecommunications companies. The companies are said to have "understandable misgivings" over the unresolved issue of retroactive immunity for their participation in past wiretapping. Spy agencies have claimed that the expiration of the old legislation has caused them to miss important information. The bill that would grant the immunity passed in the Senate, but not in the House.

Re:Bush Blows It

[rpillala]

Yesterday, Bush barfed at us [yahoo.com] in his radio address:

WASHINGTON - President Bush said Saturday that Democratic leaders in the House are blocking key intelligence legislation so trial lawyers can sue phone companies that helped the government eavesdrop on suspected terrorists after the Sept. 11 attacks.

This is a fabrication, as the only case pending right now (am I wrong?) is the one by the EFF, hardly a bunch of trial lawyers looking to get rich. Gleen Greenwald interviewed Cindy Cohn [salon.com], the lead counsel in EFF's case against AT&T in October of last year.

It's a smokescreen - you're already wiretapped

[Zollui]

The NSA has been eavesdropping on electronic comms of US citizens including telephone conversations for several decades. It was illegal to do this in the USA so they did it from their base at Menwith Hill in Yorkshire, England (MH is the world's largest listening post).

Re:I call B.S.

[Verteiron]

Fear mongering sucks. We're a better nation than this.

Apparently we are not.

Re:How do they know?

[Vellmont]

Assume they recorded a conversation that was important, and part of that conversation was let's talk every Thursday. Or they said we're putting everything in place, we'll contact you shortly with the time.

Yah, that would be true if the current wiretaps were to expire when the legislation expired. But the law was written to specifically say they didn't. Any existing wiretaps expire when they were originally set to expire.

Re:Resuming wiretaps

[Phroggy]

Seriously. Is it illegal to eavesdrop on overseas conversations? That is what we are talking about here. These calls we are tapping have at least one party overseas. Please, tell me: What law designed to protect non-Americans are we breaking?

Take a look at the fourth amendment to the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The language is a bit archaic, but the gist of it is, the government can't go snooping through your stuff, unless they can show probable cause and get a warrant that says what they're looking for and where it is. Obviously telephones didn't exist at the time, but if they did, it's reasonable to assume that telephone conversations would have also been included along with "papers and effects", so that's how we interpret this.

So it's perfectly OK for the government to wiretap someone's phone, if they get a warrant. However, this raises three concerns: first, if they get a tip, they need to act immediately, and getting a warrant from a judge normally takes time. Second, it may be difficult to explain to a judge who hasn't dealt with matters of national security before why the government really should be wiretapping this person's phone. Finally, warrants are normally a matter of public record, and we wouldn't want terrorists to know which phones we're wiretapping!

So, Congress addressed these concerns by passing the Foreign Intelligence Surveillance Act. It establishes a secret court that can issue warrants without making them public; the judges have a ridiculously high security clearance and have training and experience dealing with matters of national security, and the warrants issued by the FISA court are retroactive for 72 hours - so the government can start eavesdropping immediately, then file the paperwork a couple days later and everything is OK. As it turns out, the FISA court is little more than a rubber stamp (apparently out of thousands of warrant applications, they've only ever rejected five). But this allows the government to comply with the Constitutional requirements laid out in the fourth amendment.

The problem is that the Bush administration is ignoring the law and wiretapping people's phones without getting warrants from the FISA court.

You mentioned that these calls have at least one party overseas. Even if you interpret "the people" to include only US citizens on American soil, if only one party is overseas, you're still eavesdropping on a conversation involving an American, so it's still illegal regardless of who they're talking to (if you don't have a warrant).

Also, how do you know the conversations the government is wiretapping all involve foreigners? Sure, that's why President Bush says he wants the power to wiretap without a warrant, but with no oversight whatsoever, all we have is his word, which most of us don't hold in high esteem at the moment.

Does this clear things up?

approximately 40 cases

[SpaceLifeForm]

Link [eff.org]

Re:How do they know?

[gilroy]

Although those examples raise the question of why don't you just get a warrant...

Because it's never been about getting a warrant, or conducting the wiretapping, or any legitimate purpose. It's always about immunizing the telecoms so that the lawsuits can't proceed to discovery phase -- which is just a way of saying, it was about immunizing the administration from its misdeeds.