Senate OKs again warrantless intercepts of overseas messages

The U.S. Senate overwhelmingly approved a five-year extension that allows the U.S. government to intercept, record and file telephone calls and email messages of expats overseas and U.S. citizens communicating to points outside the United States.

That is part of the 2008 amendment added to the Foreign Intelligence Surveillance Act that was soon to expire. The extension is expected to be signed by President Barack Obama.

The Senate took the action even though some lawmakers argued that there is no adequate oversight procedures in place. That also is the argument of the Electronic Privacy Information Center that seeks to have increased transparency and new public reporting of the government’s surveillance activities. Under current law, U.S. citizens overseas may never know that the U.S. government is spying on them until they are charged with a crime.

That was one of the central arguments when a host of civil rights and privacy organizations carried a case to the U.S. Supreme Court at the end of October.

The case is James R. Clapper, Jr., vs. Amnesty International. Clapper is director of national intelligence. The retired U.S. Air Force lieutenant general is basically the coordinator of U.S. intelligence-gathering activities.

The current Supreme Court case is not about the constitutionality of the law, just the right of the individuals to bring a legal challenge. In addition to rights and privacy organizations, some news reporters and lawyers are seeking to challenge the amendment.

The U.S. government’s lawyer, Donald B. Verrilli Jr., solicitor general, argued that in order to have standing to bring a challenge to the law a person would have to get notice that the government intends to introduce information in a proceeding against them, according to a transcript of the oral arguments before the court. That’s because the intelligence community will not notify persons who are being monitored.

He also said that there is a possibility that if the court ruled in favor of the challengers that the government would halt the litigation by calling the information state secrets.

Some justices expressed concern that the law gives the government the right to eavesdrop on lawyers and their discussions with foreign clients who face terrorist charges.

Jameel Jaffers, the lawyer for Amnesty, said that “plaintiffs have standing here because there is a substantial risk that their communications will be acquired under the act and because this substantial risk has effectively compelled them to take immediate measures to protect information that is sensitive or privileged. Plaintiffs are lawyers, journalists and human rights researchers who routinely engage in communications that the act is designed to allow the government to acquire.” The quote comes from the transcript.

The plaintiffs claim the law violates the Constitution’s Fourth Amendment because it allows surveillance without a judicial warrant. Warrants are required to eavesdrop on U.S. citizens within the United States, and a special court has been set up to issue such warrants in terrorism cases.

The original article stemmed from the Bush administration admission that it was illegally conducting surveillance without warrants. The measure was designed to make that legal in the aftermath of the Sept. 11 terrorist attacks.

The Senate vote Friday was 73 to 23. The same body rejected a clause that would have required the U.S. government to at least provide statistics on how many U.S. citizens were being monitored.

The 2008 measure and the extension basically allows the U.S. government to monitor U.S. citizens when they communicate electronically overseas.

Although the U.S. government says it is using the eavesdropping power selectively in terrorism cases, privacy advocates argue that the acres of computers maintained by U.S. intelligence-gathering operations are recording every overseas telephone call and email message. The National Security Agency is expected to open a new $2 billion surveillance facility in Utah this year.

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