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President Signs Law to Expand Wiretapping Program

August 6, 2007 at 6:15 PM EDT
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TRANSCRIPT

GWEN IFILL: Casting a wider surveillance net, Judy Woodruff has that story.

JUDY WOODRUFF: President Bush signed the Protect America Act yesterday after Congress quickly approved the measure before its recess. The new law grants wide latitude to the National Security Agency to intercept phone calls and e-mails of foreigners and, under some circumstances, American citizens.

Among its key provisions, the act allows wiretapping without a warrant, as long as the surveillance target is reasonably believed to be outside the United States; grants the attorney general and the director of national intelligence the power to authorize the surveillance; and permits the attorney general and the DNI to compel telecommunications companies to cooperate with the government.

The secret court previously charged with approving individual wiretaps will now determine if the government is complying with the law. The legislation will have to be re-authorized by Congress in six months.

For more on this modified surveillance program, we get two views. Kate Martin is director of the Center for National Security Studies, a nongovernmental organization that researches and advocates for civil liberties on national security issues.

And Bryan Cunningham is a former lawyer for the National Security Council in the Bush administration and at the CIA during the Clinton administration. He now is in private practice.

Thank you both for being with us. And, Kate Martin, to you first. President Bush says this is legislation that is going to fill in what he describes as a dangerous gap in intelligence gathering. How do you see it?

KATE MARTIN, Center for National Security Studies: Well, if there’s a gap that needs to be filled in, Congress should have filled it in. But it is clear that what this legislation actually does is authorizes the NSA to gather up millions or billions of communications by Americans with people overseas.

And if, after six years after September 11th, the best our intelligence community can do is to wiretap billions of communications by Americans in the hope that they’re going to find a needle in a haystack, I think we all have reason to be really concerned.

GWEN IFILL: Bryan Cunningham, is that what this is, an effort or giving the government the ability to wiretap billions of communications?

BRYAN CUNNINGHAM, Former Lawyer, National Security Council: Absolutely not, Judy. This is another example of the rather stunning hyperbole and miscommunication that we’ve seen since President Bush signed this bipartisan bill into law.

It’s important to understand what this is directed against. It is directed against purely foreign-to-foreign communication, where you have a terrorist or another threat to U.S. national security overseas communicating with someone else overseas, where the communication may happen to pass through the United States.

What President Bush has done here is he has now subjected his activities to court review, which the other side has said they wanted, and legislative review, which the other side has said they wanted. And these actions have never been subject to — intended to be subject to any such oversight in American history.

The FISA Congress in 1978 said explicitly they did not intend to cover foreign-to-foreign communications, and no court has ever held that such communications should be covered. What’s happened here is we’ve gone above and beyond that.

Communications involving Americans

Kate Martin
Center for National Security Studies
Millions of people overseas have communications with people in the United States. And it's those communications that go out from overseas to the United States or the United States to overseas that are clearly covered by this.

JUDY WOODRUFF: Kate Martin?

KATE MARTIN: Well, Mr. Cunningham, I'm afraid, is describing the Democratic alternative that was rejected by the Congress. The legislation is not about foreign-to-foreign communications. It's about communications by people overseas either into the United States or from the United States, including communications between people overseas.

There is no judicial oversight. The court doesn't have to issue a warrant. There is no meaningful congressional oversight, and they refused inspector general oversight.

JUDY WOODRUFF: Well, let's take your point. Bryan Cunningham, let's take Ms. Martin's point that what is now going to be possible is that communications where Americans are involved -- not as a target -- but even if they are participating in a phone call or an e-mail communication with someone overseas, who is being targeted.

BRYAN CUNNINGHAM: Well, I hate to inject some facts into this discussion, but let me read to you, Judy, from the statute. It is only directed at a person, quote, "reasonably believed to be located outside of the United States." Only George Orwell or someone with a partisan motive could read that in the reverse to mean communications inside the United States. I'd like Ms. Martin to point me to a word in this legislation that talks about communications where a person is located inside the United States.

KATE MARTIN: Well, it's very clear. It says "surveillance directed at people overseas." Millions of people overseas have communications with people in the United States. And it's those communications that go out from overseas to the United States or the United States to overseas that are clearly covered by this. And, in fact, there was a separate provision that said "foreign-to-foreign." The administration said no to that provision.

JUDY WOODRUFF: So you're saying it's a much broader sea, in other words, of communications that can be listened in on or overseen by the government?

KATE MARTIN: It's definitely much broader.

JUDY WOODRUFF: Mr. Cunningham?

BRYAN CUNNINGHAM: Well, there's simply no evidence of that. There have been multiple hearings. I participated in some myself. Kate's participated in some. This is not the Terrorist Surveillance Program which was directed against communications between al-Qaida overseas and people in the United States. There's been testimony under oath to that effect.

Director Mike McConnell, the director of national intelligence, who was first appointed to a high position by President Clinton, has given classified and unclassified briefings on that. This is not intended to cover communications with people in the United States, as the language says, reasonably believed to be located outside the United States.

KATE MARTIN: I believe that the president's press spokesman today or yesterday acknowledged that the bill would allow the NSA to listen to communications between people in the United States and people overseas. I don't think there's any dispute about that whatsoever, and there's no protections in the law against doing that.

Bringing in FISA court, Congress

Bryan Cunningham
Former Attorney for NSC
There may be communications where the NSA or other government agencies are targeting persons overseas, like members of al-Qaida, and they may be in communication at some point with people in the United States. But that has always been permitted.

JUDY WOODRUFF: Are we talking about the same thing here, Mr. Cunningham?

BRYAN CUNNINGHAM: I honestly don't understand what Kate is talking about. I've read you the language from the statute. As has been the case since 1978, there may be communications where the NSA or other government agencies are targeting persons overseas, like members of al-Qaida, and they may be in communication at some point with people in the United States. But that has always been permitted.

And up until now, it has not even required court involvement or congressional involvement until you decide to target the communications of the person in the United States. So what this bill does is it brings in the FISA court, it brings in the Congress on communications that even the Congress in 1978 did not intend to be covered. The only reason they were inadvertently covered is because of a quirk in the law.

KATE MARTIN: I don't know that Mr. Cunningham's actually read the law or the three bills that were introduced and rejected in the past week, because it's not limited to al-Qaida. It says "person overseas." There's no court warrant here.

JUDY WOODRUFF: I want to raise another point, Kate Martin, that I know in discussions with you ahead of time you had said you were also concerned that this act will let the attorney general and the director of national intelligence compel telecommunications companies, like AT&T, Verizon and Qwest, let the NSA have access to their lines. Why is this a problem?

KATE MARTIN: Well, before this law was passed, the structure of the Foreign Intelligence Surveillance Act was that a court had to issue an order saying that government is entitled to these communications. That order had to be presented to the telephone companies, and they were responsible for just turning over what the government was legally entitled to do.

Now the NSA will sit on the line, they will have access to all communications, and they will have the sole authority and power to sort what they're entitled to and what they're not entitled to. That's a "trust us" system that, in our view, is unconstitutional.

Proposals by Congress, White House

Kate Martin
Center for National Security Studies
They never look at how many calls are picked up, who's picked up, what they do with the information. They rejected all of that. All of that was proposed by the Democrats; all of it was rejected by the administration.

JUDY WOODRUFF: Mr. Cunningham?

BRYAN CUNNINGHAM: Well, look, this will be challenged in court. And one of the things that the president has allowed by signing this law, which I have read and I have in front of me and I just quoted a minute ago, is for now the providers can actually go to the FISA court themselves with the ability to get review and appellate review and try to block an order to cooperate with this foreign-to-foreign communication, which in the past, again, has not been regulated at all.

So what the Congress and the administration have done here is they've built in privacy and civil liberties protections. And what happens is the other side continues to move the goal post. Senator Feingold and all the Democratic leadership said less than a week ago they wanted to fix the foreign-to-foreign problem, they wanted a court oversight, they wanted congressional involvement. They got all of those, and now that's not good enough.

JUDY WOODRUFF: And just to be clear, the FISA court is this secret court, the Foreign Intelligence Surveillance Act court, that now will have oversight but at the tail end, is that right?

KATE MARTIN: And it will have no information about how this authority and power is used. The Congress at the request of the administration took out that. The only role that the FISA court plays is to look at the methods to determine whether or not the methods are likely to figure out that someone on one end of the call is likely to be overseas.

They never look at how many calls are picked up, who's picked up, what they do with the information. They rejected all of that. All of that was proposed by the Democrats; all of it was rejected by the administration.

Demanding information on FISA

Bryan Cunningham
Former Attorney for NSC
I dare say, if the judges determine that they need to have this data about how many people have been intercepted, they will ask for it.

JUDY WOODRUFF: Mr. Cunningham, on that point?

BRYAN CUNNINGHAM: Well, I've litigated in front of the FISA court. And as history has shown, these judges are not shy to demand information when they want it. What their role is, is to determine whether the procedures are, quote, unquote, "reasonably designed" to ensure that the acquisitions concern overseas communications.

And I dare say, if the judges determine that they need to have this data about how many people have been intercepted, they will ask for it. Likewise, the congressional oversight which is provided in this bill, which includes not only the intelligence committees, but also the judiciary committees, they will not be shy in asking for that information.

But there's one larger point here, if I may, and that's being, I think, overlooked in this debate, and that is that there is technology available right now in the private sector that the government and the courts could use to better process this information, to screen out, as is required under this law, information about innocent Americans. And I hope all of us can agree that we should move in that direction regardless of what our political views are.

JUDY WOODRUFF: Very brief response, if you would.

KATE MARTIN: I think the best thing would be for people to look at the Democratic alternative that failed and compare it with what passed. And I think you will find there are no safeguards and the government is free to vacuum up Americans' international communications.

JUDY WOODRUFF: Well, it's clear we're going to be hearing much more about this piece of legislation.

BRYAN CUNNINGHAM: Absolutely.

JUDY WOODRUFF: Bryan Cunningham, Kate Martin, thank you both.

BRYAN CUNNINGHAM: Thank you, Judy.