How Bush Gained the Power to Spy on You without Security Justifications

After enduring weeks of blistering criticism for Attorney General Alberto Gonzales's inartful elisions about the National Security Agency (NSA) spying activities, the Bush Administration has successfully forced on Congress a law that largely authorizes open-ended surveillance of Americans' overseas phone calls and e-mails. How did they do it?

The Protect America Act of 2007 -- the title alone ought to be warning that unsavory motives are at work -- is the most recent example of the national security waltz, a three-step Administration maneuver for taking defeat and turning it into victory.

The waltz starts with a defeat in the courts for Administration actions -- for example, the Supreme Court's extension of the rule of law to the US military prison at Guantánamo in the 2004 case of Rasul v. Bush, or its striking down of the military commissions in 2006 in Hamdan v. Rumsfeld. The second step does not follow immediately. Rather, some months later, the Administration suddenly announces that the ruling has created a security crisis and cries out for urgent remedial legislation. Then (and here's the coup de grâce) the Administration rams legislation through Congress -- the Detainee Treatment Act of 2005, or the Military Commissions Act of 2006 -- that not only undoes the good court decision but also inflicts substantial damage to the infrastructure of accountability.

This time, the sordid dance began with a bad ruling for the government, a ruling that demands some context to be understood.

In January the Administration suddenly announced that it was submitting the secretive NSA "terrorist surveillance program" to the Foreign Intelligence Surveillance Court, or FISC, a closed judicial process established by the 1978 FISA law to handle search warrants for foreign intelligence purposes. The move came as federal appellate courts in Ohio and California seemed on the cusp of ruling the NSA's domestic surveillance efforts illegal as violations of FISA and possibly the Fourth Amendment. It seemed a way to forestall defeat in those cases.

But in early summer, a FISC judge declined to approve part of the NSA's activities. While the ruling remains classified, it apparently focused on communication that originated overseas but passed through telecom switches in the United States.

Modern telecommunications work by breaking communications into packets of data and routing them through a network of connected computers. Messages do not travel in a linear fashion: A message from Murmansk to Mali might be routed through California. Many of the largest switches routing international data are located in the United States. As USA Today reported in May 2006, the NSA is already tapping those switches. And since January, the government appears to have obtained "basket warrants," allowing it to trawl this data freely, without any judicial or Congressional oversight.

It seems likely that the judge objected because the NSA was collecting calls that originated overseas but ended in the United States. The NSA can generally get a warrant for such communications -- unless there is no evidence that the person under scrutiny is a terrorist. A broad-brush NSA surveillance program, especially one that generates its leads through data-mining, the science of extracting information from large databases, might have exactly this problem.

The second step in the waltz came several months later, with Administration allies such as House minority leader John Boehner invoking the FISC ruling on Fox News as justification for a new law. As usual, the Administration and its allies had no compunction about using classified information -- such as the ruling -- when it helped them politically. And as usual, the Administration artfully concealed the full details of the ruling even while insisting on it as a spur to immediate action. By waiting for the last week of the Congressional session, the Administration in effect cut off the possibility of meaningful debate.