With the Fourth of July approaching, and we as Americans begin to celebrate our indepedence and freedoms, a debate in Congress will be left stalled in the Senate over whether to renew The Protect America Act. Scott Louis Weber, a partner for the D.C. law firm Patten Boggs and former senior counsel to the secretary of Homeland Security, wrote an Op-Ed article for Forbes.com on this very subject. Mr. Weber’s article suggests that with the expiration of The Protect America Act on February 16, 2008, Congress has brought the U.S. intelligence community back to pre-Sept. 11th intelligence gathering, and potentially subjecting us to imminent terrorist attacks (the same people who said there were WMD’s in Iraq).
The Protect America Act was enacted by Congress in 2007 to fill in legislative gaps left behind by the Foreign Intelligence Surveillance Act of 1978 ("FISA"). The purpose of the new law, in Mr. Weber’s words, was to ensure that, as the volume and speed of electronic communications increased, the judicial process would not slow down the U.S. intelligence community’s collection efforts for targets overseas. It also protected third parties (e.g. telecommunication companies) from private lawsuits related to the authorized surveillance of people located overseas. However, the law did not protect retroactive legal protections for telecommunications companies that assisted the federal government in post-Sept 11th surveillance operations. The issue of retroactive immunity is the purpose for the delay in renewing the law.
Mr. Weber tries to scare the reader into believing that "if retroactive immunity is not granted, it will have a chilling effect on the private sector’s willingness to help the government again during times of need and extraordinary circumstances. We need the private sector as a force multiplier to help protect our country from terrorism and other hazards." This "playing to our fears, that’s why we should legislate" song has got to be getting very old (it’s been played too many times). The U.S. intelligence community is not, and never has been, prevented from spying on anyone or anything who is outside the borders of the United States. Therefore nothing could legally prevent intelligence officials from monitoring internet or telecom usage outside the U.S. In fact, this can easily be done without any sort of law being enacted (see FISA, Eschelon, etc.). Don’t believe me, just ask the 14 year-old girl in New Delhi, India, hacking into the U.S. Department of Defense website.
What needs to be maintained is our First and Fourth Amendment Rights under the U.S. Constitution. As we celebrate this Fourth of July, many of our rights to privacy and due process are slowly being eroded away out of "FEAR/TERROR" for the unknown. Many politicians espouse that we should not want the terrorists to "win", but enacting laws which destroy our due process and privacy rights would lead me to believe that the terrorist have already won. American’s are proud, patriotic people, who, when knocked down, pick themselves right back up and move forward (see historical references to Revolutionary War, Civil War, Pearl Harbor, Sept. 11th, etc.). That is our nature. In a time of crisis, private sector companies and citizens have the same obligations to protect American interests, but when is our nation’s security ever not in a "time of crisis"? I’ve been alive for 33 years and it seems like our national security has been under attack in perpetuity. Our military industrialized complex will always find a common enemy to scare us into believing that our fundamental rights are "under attack." Looking at the history of the 20th Century first it was the Facists (see WWI and WWII), then it was the Communists (see Korea and Vietnam War), and now it is the Terrorists (see Munich Olympic Games, Pan Am 103, Sept. 11th, etc.).
Who knows, once we have "defeated" the Terrorists, we better watch out for the Canadians, because afterall, there is more oil, untapped in the Great White North, than in anywhere else on the planet.
To read Mr. Weber’s article, please click here: Keeping Tabs on Terrorist Communications