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The End of Privacy
By Elliot Cohen
25/01/08 "Truthdig"
-- -- Amid the controversy brewing in the Senate over
Foreign Intelligence Surveillance Act (FISA) reform, the Bush
administration appears to have changed its strategy and is
devising a bold new plan that would strip away FISA protections
in favor of a system of wholesale government monitoring of every
American’s Internet activities. Now the national director of
intelligence is predicting a disastrous cyber-terrorist attack
on the U.S. if this scheme isn’t instituted.
It is no secret that the Bush administration has already been
spying on the e-mail, voice-over-IP, and other Internet
exchanges between American citizens since as early as and
possibly earlier than Sept. 11, 2001. The National Security
Agency has set up shop in the hubs of major telecom
corporations, notably AT&T, installing equipment that makes
copies of the contents of all Internet traffic, routing it to a
government database and then using natural language parsing
technology to sift through and analyze the data using
undisclosed search criteria. It has done this without judicial
oversight and obviously without the consent of the millions of
Americans under surveillance. Given any rational interpretation
of the Fourth Amendment, its mass spying operation is illegal
and unconstitutional.
But now the administration wants to make these illegal
activities legal. And why is that? According to National
Director of Intelligence Mike McConnell, who is now drafting the
proposal, an attack on a single U.S. bank by the 9/11 terrorists
would have had a far more serious impact on the U.S. economy
than the destruction of the Twin Towers. “My prediction is that
we’re going to screw around with this until something horrendous
happens,” said McConnell. So the way to prevent this from
happening, he claims, is to give the government the power to spy
at will on the content of all e-mails, file transfers and Web
searches.
McConnell’s prediction of something “horrendous” happening
unless we grant government this authority has a tone similar to
that of the fear-mongering call to arms against terrorism that
President Bush sounded before taking us to war in Iraq. Now,
Americans are about to be asked to surrender their Fourth
Amendment rights because of a vague and unsupported prediction
of the dangers and costs of cyber-terrorism.
The analogy with the campaign to frighten us into war with Iraq
gets even stronger when it becomes evident that along with the
establishing of American forces in Iraq, the cyber-security
McConnell is calling for was, all along, part of the strategic
plan, devised by Dick Cheney and several other present and
former high-level Bush administration officials, to establish
America as the world’s supreme superpower. This plan, known as
the Project for the New American Century, unequivocally
recognized “an imperative” for government to not only secure the
Internet against cyber-attacks but also to control and use it
offensively against its adversaries. The Project for the New
American Century also maintained that “the process of
transformation” it envisioned (which included the militarization
and control of the Internet) was “likely to be a long one,
absent some catastrophic and catalyzing event—like a new Pearl
Harbor.” All that appears to be lacking to make the analogy
complete is the “horrendous” cyber-attack—the chilling analog of
the 9/11 attacks—that McConnell now predicts.
Apparently, the Bush administration had hoped to continue its
mass surveillance program in secret, but as many as 40 civil
suits were filed against AT&T and other telecoms, threatening to
blow the government’s illegal spying activities wide open.
Unable to have these cases dismissed in appellate court by once
again playing the national-security card, the administration
drafted and tried to push through Congress a version of the FISA
Amendments Act of 2007 that gave retroactive immunity to telecom
corporations for their assistance in helping the government spy
en mass on Americans without a court warrant. The
administration’s plan was to use Congress’ passage of this
provision of immunity to nullify any cause of civil action
against the telecoms, thereby pre-empting the exposure of the
administration’s own illegal activities.
Two versions of the FISA bill emerged, one from the Senate
Intelligence Committee drafted largely by Cheney himself, which
contained the immunity provision, and another from the Senate
Judiciary Committee that did not contain the provision. Although
Senate Majority leader Harry Reid inauspiciously chose the
former to bring to the Senate floor, the bill was surrounded by
much controversy. There had been well organized grass-roots
pressure to stop it from passing, and the House had already
passed a version that did not include the retroactive immunity
provision. Thus, in the face of a filibuster threat by Sen.
Chris Dodd (D-Conn.), Reid postponed the discussion until the
January 2008 session.
Now Reid has tried to put off the FISA Amendments Act once again
by asking Republicans to extend, for one more month, the Protect
America Act of 2007, an interim FISA reform act that is due to
sunset in February. However, Cheney has urged Congress to pass
his version of the FISA Amendments Act now. “We can always
revisit a law that’s on the books. That’s part of the job of the
elected branches of government,” Cheney said. “But there is no
sound reason to pass critical legislation ... and slap an
expiration date on it.”
Cheney’s point about the possibility of later revisiting the
FISA Amendments Act after it becomes law may foreshadow
replacing it in the coming months with a law based on
McConnell’s plan, which is due to emerge in February. This would
mark a gradual descent into divesting Americans entirely of
their Fourth Amendment right to privacy—first by blocking their
ability to sue the telecoms for violating their privacy and then
by giving the government the same legal protection. After all,
the FISA Amendments Act still requires the government to get
warrants for spying on American citizens even if it does not
afford adequate judicial oversight in enforcing this mandate.
McConnell’s proposal, on the other hand, would make no bones
about spying on Americans without warrants, thereby
contradicting any meaningful FISA reform.
President Bush has already made clear he would veto any FISA
bill that did not give retroactive immunity to the telecoms.
However, if McConnell’s soon to be unveiled spy-at-will plan is
turned into law, a separate law giving retroactive immunity to
the telecoms would be unnecessary. All Bush and Cheney would
need to do to protect themselves from criminal liability would
be to make the new spy-at-will law retroactive in effect from
the inception of the illegal NSA surveillance program. This
would also be sufficient to deflate the civil suits filed
against the telecoms because the past illegal spying activities
that these companies conducted on behalf of the government would
then become “legal.” Indeed, the Bush administration has already
done this sort of legal retro-dating and nullifying of civil
rights and gotten it through Congress. For example, the Military
Commissions Act of 2006 conveniently gave Bush the power to
decide whether someone—including himself—is guilty of torture,
irrespective of the Geneva Conventions, and it made this
authority retroactive to Nov. 26, 1997.
Whatever the final disposition of FISA in the coming weeks or
months, the administration is now bracing to take a much more
aggressive posture that would seek abridgement of civil
liberties in its usual fashion: by fear-mongering and warnings
that our homeland will be attacked by terrorists (this time of
the menacing hacker variety) unless we the people surrender our
Fourth Amendment right to privacy and give government the
authority to inspect even our most personal and intimate
messages.
It would be a mistake to underestimate the resolve of the Bush
administration. But it would be a bigger mistake for Americans
not to stand united against this familiar pattern of government
scare tactics and manipulation. There are grave dangers to the
survival of democracy posed by allowing any present or future
government unfettered access to all of our private electronic
communications. These dangers must be carefully weighed against
the dubious and unproven benefits that granting such an awesome
power to government might have on fending off cyber-attacks.
Elliot D. Cohen, PhD, is a media ethicist and critic. His most
recent book is “The Last Days of Democracy: How Big Media and
Power-Hungry Government Are Turning America Into a
Dictatorship.” He is a first-prize winner of the 2007 Project
Censored Award.
Copyright © 2007 Truthdig, L.L.C. All rights reserved.
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