Following the disgrace of Richard Nixon and the debacle of the Vietnam War, a uniform mood swept America that the President had too much power, and when a congressional committee showed widespread abuse of government wiretaps, the Foreign Intelligence Surveillance Act (FISA) was adopted by Congress to govern the surveillance of people in the United States done in the name of collecting “foreign intelligence information.”
“It went through with very little opposition,” remembers UVA law Professor Robert Turner, associate director of the Center for National Security Law. In 1978, he was a national security advisor to U.S. Senator Bob Griffin. After working in the Senate, he then acted as counsel to the President’s Intelligence Oversight Board, which was set up to oversee all of the intelligence community entities and report directly to then President Ronald Reagan if any member of the Board felt that something was illegal. Part of Turner’s job was to look at FISA.
Professor Robert Turner recently switched to AT&T to support its decision to release private phone records.
“When it was enacted, I thought it was unconstitutional and my views haven’t changed on that,” he says, “but I am obviously in the minority.” Also in the minority is the Bush Administration—especially Vice President Dick Cheney—who responded to 9/11 by arguing that FISA was overly restrictive. Almost immediately, parts of the PATRIOT Act expanded the law’s reach to include terrorism suspects as agents of foreign countries. Then, in 2005, The New York Times reported that President Bush had secretly ordered an expanded program of surveillance by the National Security Agency, bypassing the FISA process entirely.
“We ought to be more concerned if Bin Laden is calling someone in Peoria than if he’s calling someone in Pakistan,” Turner says, arguing for an expansion of FISA. “Maybe he’s just calling to say, ‘Hey, Khalid, I’m terribly sorry, but your Uncle Ahmed died last week, and there’s going to be a funeral.’ It also might be a code, but the idea that it’s unreasonable to listen to a telephone conversation with an entity that Congress has authorized a use of force against just to me is asinine.”
In August, Congress passed the Protecting America Act with the administration’s changes to FISA, but with an expiration date six months away. As of the weekend of February 15, the House and Senate had failed to work out a replacement bill, letting the Protect America Act expire. The key sticking point turned out to be the administration’s insistence that telecommunications companies that had turned over phone records to the secret wiretapping program be given immunity from prosecution.
“I just paid a $400 termination fee to leave one company and sign up with AT&T in part because I was so pleased they had volunteered and cooperated,” says Turner. “There used to be a spirit of patriotism in this country that when you were at war you tried to help your government.” Not granting corporate immunity would send the wrong message, says Turner. “To me, it is just outrageous.”
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