Civil Liberties Don’t Expire

The heated rhetoric this week of trying to place blame for the expiration of the Protect American Act (PAA) obscures important civil liberties issues surrounding intelligence surveillance. No doubt: the President is playing politics with national security by trying to corner House Democrats into accepting a deeply flawed Senate bill. And for what? Most of the government’s intelligence surveillance authorities survive, despite the sunset of the PAA; expiration of that law will have little immediate effect.

That’s because the PAA allows surveillance authorizations to continue at least six months after the sunset date. Read that sentence again. If a new surveillance target is identified after the law sunsets, in most cases intelligence agents will be able to add the target to an existing authorization. Moreover, the Foreign Intelligence Surveillance Act itself – which the PAA amended – is still in place and is no doubt still being used to authorize surveillance. In short, the NSA isn’t “going dark” when the PAA expires. Lost in the drama surrounding the expiration of the PAA is any discussion about what led Congress to enact the law in the first place, what it does, and how it needs to be changed.

The PAA permits warrantless surveillance of intelligence targets abroad who may be communicating with Americans in the U.S., and provides virtually no protection for those communications even when an American is on the line. It legalizes a portion of the lawless, warrantless, wiretapping program the President launched in October 2001. Foreign targets under that program often can be surveilled under the PAA. The fundamental question for Congress as it contemplates reauthorizing the PAA is whether it will create an adequate judicial check on intelligence surveillance that implicates the rights of Americans.

The House-passed bill did just that, and the Senate-passed bill did not. In the House bill a court, not spy agencies, authorizes the surveillance programs at issue. The House bill also cuts off any argument a future administration might make that Congress implicitly authorizes warrantless wiretapping when it authorizes the use of force. Finally, the House bill ensures that when a person in the U.S., who is communicating with a target abroad, has himself become of significant intelligence interest, the government has to get an individualized warrant based on probable cause.

These are significant differences, and they are not about protecting the privacy of people abroad, but the privacy of Americans in the U.S. As more Americans communicate with more people abroad, these questions become all that more important. That’s why Congress has to take the time necessary to get the answers right today. And it is why the House bill should be passed into law.