Cheney’s speech articulated the Bush administration’s position on surveillance issues in anticipation of the imminent expiration of the Protect America Act, a temporary surveillance bill that was enacted in response to a ruling from the secretive Foreign Intelligence Surveillance Court (FISC) that reportedly reined in intelligence-gathering activity. The Protect America Act broadly expanded federal surveillance power and eliminated many requirements for judicial oversight, making it possible for the executive branch and some of its direct subordinates to authorize warrantless interception of communications between people “reasonably believed to be outside the United States.”
Cheney framed this policy as an effort to modernize the FISA process and is calling for Congress to make permanent those provisions of the Protect America Act. Cheney also asserts that domestic telecommunications service providers who cooperate with government requests for information should be granted legal immunity for their potentially unlawful behavior.
“First, our administration feels strongly that an updated FISA law should be made permanent, not merely extended again with another sunset provision. We can always revisit a law that’s on the books—that’s part of the job of the elected branches of government. But there is no sound reason to pass critical legislation like the Protect American Act and slap an expiration date on it. Fighting the war on terror is a long-term enterprise that requires long-term, institutional changes. The challenge to the country has not expired over the last six months. It won’t expire any time soon—and we should not write laws that pretend otherwise,” said Cheney during his speech. “Second, the law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits. We’re asking Congress to update FISA and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11th, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now. Why? Because they are believed to have aided the U.S. government in the effort to intercept international communications of al Qaeda-related individuals.”
Critics of the government surveillance program note that telecom involvement in warrantless wiretapping likely violates section 222 of the Communications Act, which prohibits disclosure or provision of access to customer network information. The legality of the program, however, is in dispute because the FCC has declined to investigate, the telecom companies have refused to disclose information about the program to Congress, and the FISC ruling regarding the legality of the program is classified and remains a guarded secret.
The Bush administration has demanded retroactive immunity grants for the telecom companies and has threatened to veto any surveillance bills that do not include said provisions. The telecoms themselves have also been vigorously lobbying for immunity. There are allegations that the telecom companies have attempted to use political leverage to obtain the immunity grants, but the veracity of those allegations cannot be evaluated yet because the DoJ has—in clear violation of the Freedom of Information Act—been stonewalling the EFF’s formal requests for information regarding interaction between telecoms and politicians.
Concerns have been expressed by critics that the kind of surveillance made possible by the Protect America Act is only the beginning and that basic privacy rights will be further eroded as the government continues to push the boundaries of law. Indeed, Cheney also passingly endorses a proposal made by intelligence chief Mick McConnell that reaches far beyond the current FISA dispute and would enable the government to intercept virtually all network traffic in the United States, an unprecedented level of surveillance.
In light of consistent abuses of basic surveillance powers granted to federal law enforcement agencies, it’s not a stretch to believe that more secretive surveillance programs would also be rife with abuse in the absence of more direct transparency and oversight.