Conservative Donnybrook

The modern reality of telecommunications is that a phone call which originates in Poland and terminates in Indonesia may very well pass through switches in the United States. The special intelligence court which is in charge of authorizing domestic wiretaps ruled last year that communications which were routed through these U.S. switches were domestic communications and subject to the warrant requirements set out in FISA regardless of where they originated or terminated. In response, Congress quickly authorized the attorney general to initiate wiretaps where the government reasonably believed that at least one of the parties was outside of the United States and that the target of the wiretap was not the domestic party. This was called the Protect America Act and it expired on February 17, 2008. Congress has failed to renew this act.

George W. Bush has been stamping his feet, blustering and pleading for Congress to renew the act and threatening to veto anything less than a permanent reauthorization of the act. The question though is whether the act is truly necessary. Victor Comras frames the question pretty well in his post on the counterterrorism blog:

Few pieces of legislation before Congress carry such gravity and importance when it comes to the twin goals of protecting our national security and preserving our civil liberties. Such matters should be considered with gravity and thorough deliberation. And there is much in this act which deserves further deliberation. Many of its current provisions were adopted previously under an atmosphere of high tension and great pressure from the White House. The only pressure now is that President Bush threatens to veto any further temporary extension of the current act. A temporary extension would certainly have kept in place sufficient authority to keep tabs on the potential terrorists within our midst as Congress worked through the act thoroughly.

Why is it troublesome to obtain a warrant if the government wants to listen to somebody’s phone calls? If they are foreigners, such a warrant will be only a matter of asking. If the person is within the United States, there must be probable cause to believe they are involved in terrorist activity. But, this standard is appropriate. Persons in the United States are by right to be secure in their persons, houses, papers, and effect to be free from unreasonable searches and seizures.

To allow the government to tap a person’s phone simply because he is making an international call would be to amend the Constitution by legislation or by executive fiat. If he is calling a person who is suspected of terrorist activities, it is no hardship for the government to have obtained a warrant allowing calls to this person (including the call originating in the U.S.) to be monitored. Likewise, if the person in the United States is a suspected terrorist, a warrant is obtainable. If neither are suspected of any wrongdoing, then the government has no business eavesdropping on their conversation.

My short answer is: If the special intelligence court is relatively lenient in its standard for suspicion, there is no need to renew the Protect America Act.