March 20, 2006

Spying on Americans Abroad?

The Bush Administration has tried many justifications for its surveillance of Americans in contravention of the Foreign Intelligence Surveillance Act, but its primary excuse is that it only spies on communications “with terrorists” who are in other countries. This assertion has already been shown to be false on two fronts; first of all FBI officials have acknowledged that most intercepted communications are personal and mundane, and phone companies have admitted that advances in telephony have led them to mistakenly believe a target was overseas when it was actually in the States.  But what has not been investigated so far is the extent  to which these wiretaps have ensnared calls between Americans living in the United States and Americans living abroad.

FISA outlaws unauthorized surveillance between two people on American soil; their citizenship is irrelevant. That’s why the Administration initially went out of its way to emphasize the calls were not purely domestic:

''The authorization given to N.S.A. by the president requires that one end of these communications has to be outside the United States,'' General Hayden answered. ''I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States.

However, as the New York Times reported when it broke the news of the program,

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

When it began to lose this argument in the public eye, the White House successfully transformed the debate into a political one, implying that the law could be broken because FISA was “written in 1978,” and emphasizing again, without providing figures, that the surveillance targets were “terrorists.” Now the Republican-controlled Congress is looking to approve the spying in retrospect.

But like many political issues, the way Americans feel about this program varies depending on how the question is asked. Americans are resolutely against the spying when it is “an unnecessary and unwarranted infringement on civil liberties.” The unanswered question is how would people feel if many of the tapped calls abroad turn out to be innocent, intimate discussions between American family members separated by time-zones, just as many of the domestic calls have been “schoolteacher[s] with no indication they've ever been involved in international terrorism?”

By Will Friedman in High Crimes and Misdemeanors | Permalink  | 


The comments to this entry are closed.