Your New Year's Gift from Congress: Illegal Wiretapping

On Friday, Congress quietly re-authorized the government to spy on you without a reason, much less a warrant. Marcy Wheeler explains what it means:

When New York Times journalists James Risen and Eric Lichtblau revealed, on December 16, 2005, that the Bush administration was secretly wiretapping Americans without a warrant, it caused a scandal. Outraged commentary ensued. Lawsuits were filed. An attempt to renew the Patriot Act was met with a filibuster.

But seven years later, the government not only continues to collect Americans’ communications (including e-mail) without a warrant; it has largely gutted the law designed to protect against such abuses. The 1978 Foreign Intelligence Surveillance Act (FISA), passed in response to domestic spying on activists, sought to require the government to obtain a warrant before wiretapping Americans. Today the law is all but extinct, thanks to the 2007 Protect America Act and the 2008 FISA Amendments Act, which legalized—and expanded—much of what the Bush administration had been doing illegally. The FAA even granted retroactive immunity to telecommunications firms that illegally wiretapped Americans—in large part because then-candidate Barack Obama changed his stance to support such a move, vowing to address the matter as president (he has not).

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Our privacy is faring no better in the courts. Though the Supreme Court has recently shown willingness to hear challenges to the current program—during oral arguments in October, the justices seemed receptive to claims brought on behalf of The Nation, Chris Hedges, Naomi Klein and others—this is a far cry from declaring it illegal. Over the past few years, a series of lawsuits charging violations of FISA have been defeated. The government has successfully argued that plaintiffs couldn’t prove they had been illegally wiretapped because such proof is a state secret.

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Back when he was rolling out this secret program, Dick Cheney’s counsel, David Addington, reportedly enthused, “We’re one bomb away from getting rid of that obnoxious” law. Sadly, FISA’s intent couldn’t withstand the politics of fear, much less a bomb. The government still conducts its warrantless wiretapping in secret. But that’s just to prevent us from knowing what it’s doing. It no longer needs to fear the law.