President Bush this week ventured by helicopter to the National Security Agency's Maryland headquarters, where he made a public, photographed, 6-minute plea to Congress: Make expanded Internet and phone surveillance powers permanent.
Without an extension of the "tools" provided by the Protect America Act, which is set to expire February 1, "our country will be much more vulnerable to attack," Bush said Wednesday, according to the White House's transcript of his remarks.
The president said Congress must heed the repeated statements by Director of National Intelligence Mike McConnell about the importance of the temporary new law. It effectively expanded the sort of snooping that the government can do without a court order under the 1978 Foreign Intelligence Surveillance Act (FISA) by allowing warrantless surveillance of "a person reasonably believed to be located outside of the United States." It also put the power to approve such eavesdropping for one-year periods in the hands of the attorney general and intelligence czar.
The Bush administration maintains that the changes are consistent with FISA's intent--that targeting foreign communications doesn't require a warrant--and that a warrant is still required for "targeting a person in the United States." But civil-liberties advocates argue that the government is creating a loophole to monitor Americans' e-mails and phone calls to overseas contacts without the intended court approval.
The new law also immunizes from legal liability the private companies that assist the government with surveillance going forward, but Bush repeated existing calls for making that policy retroactive as well.
"It's particularly important for Congress to provide meaningful liability protection to those companies now facing multibillion-dollar lawsuits only because they are believed to have assisted in efforts to defend our nation, following the 9/11 attacks," Bush said.
The Electronic Frontier Foundation, which has sued AT&T over its allegedly illegal cooperation with the government, says references to the crippling liability posed by such suits suggest that the scope of the wiretapping is "massive."
"The statutory penalties for warrantless wiretapping are relatively small per person--even if AT&T was ordered to pay the maximum penalty, a few hundred illegal wiretaps would amount to less than a rounding error in the phone company's quarterly statements," EFF attorney Kurt Opsahl wrote in a recent blog entry. "If the NSA was truly limiting its spying to suspected terrorists, the potential liability would be like an annoying gnat on an elephant. So why are the companies so worried?"
Senate Majority Leader Harry Reid, for his part, reacted politely to the president's speech this week. "The Democratic Congress will pass legislation to strengthen the Foreign Intelligence Surveillance Act, while also respecting the privacy of law-abiding Americans," he said in a statement. "Neither the White House nor congressional Republicans should use this process to create a political wedge issue."