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St. Louis Dispatch: Today's Vote Could legalize Past Illegal Government Spying

July 08, 2008
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By Telecom whistleblower Mark Klein and whistleblower and GAP client Babak Pasdar.

In 2005, the exposure of a sprawling domestic spying program shocked the nation. President George W. Bush directly authorized the violation of the law and the Constitution by spying on citizen phone calls and e-mails without a warrant. People were shocked and appalled at the flouting of our civil liberties. The backlash against this perceived "Big Brother" world we were entering was palpable; sure enough, the next election cycle saw great turnover of the president's party.

However, the scandal may end on July 8, with no one held responsible, when the U.S. Senate is expected to ignore the corporate violation of civil liberties and approve a bill that provides retroactive immunity to the telephone companies that allowed the Bush administration to spy on customers without a warrant.

By letting the Bush administration continue to spy on innocent citizens, by legalizing the illegal spying regime he secretly ordered in 2001, by expanding secret surveillance powers even further and by granting telecoms retroactive immunity, Congress is set to deal a blow to the Constitution itself.

Underlying this debate is the Foreign Intelligence Surveillance Act of 1978, which was enacted to curb Watergate-era abuses. The act created a special secret court to which the government had to apply for individualized surveillance warrants involving foreign intelligence, thereby providing some very limited oversight of eavesdropping and upholding the warrant requirement of the Fourth Amendment to the U.S. Constitution.

But through the Patriot Act of 2001, Congress enacted a sweeping expansion of FISA, supposedly to modernize the law and allow surveillance of communications used by terrorists — including e-mails, the Internet and telephone communications.

President Bush, despite receiving all the changes he demanded, proceeded that very same month to begin eavesdropping on Americans in violation of the retooled and updated FISA law. When his program was exposed late in 2005, he tried to excuse his conduct by claiming that FISA somehow was inadequate. He has been pushing aggressively for amnesty for the companies that coooperated with his illegal program.

This newest proposed change to FISA provide telecom companies with amnesty for their past actions, which ultimately would protect not only the phone companies but also the president himself by leading to the dismissal of the lawsuits brought against the companies by their customers.

We can testify firsthand to the blatant violations because we are whistleblowers who helped expose them. Our disclosures included that AT&T cooperated with the NSA to install monitoring hardware to spy on the entire Internet and that a major telecommunications carrier allowed for federal government access to its entire mobile network — without security controls or record keeping. These security breaches represented an unprecedented expansion of government surveillance of the population.

The most paradoxical part of the congressional push for amnesty is that it defies the popular will: Most Americans opposed warrantless wiretapping; we had high congressional turnover demanding change in the midterm elections of 2006; and the president's popularity rating is at an all-time low.

Why did this happen? One answer is that many politicians are trying to avoid being nailed with a "soft on terrorism" hammer during an election year. Another is the culpability of some congressional leaders in both parties who were briefed early on about at least some aspects of the program. Additionally, the telecom companies make large campaign contributions and employ powerful lobbyists. A nonprofit watchdog group recently found that House lawmakers who supported immunity received nearly twice the amount of donations from telecom companies over three years as those who voted against it.

In a vote scheduled for today, the Senate is expected to approve amnesty and expanded spying. That makes this the last chance to turn it back. We urge that amnesty be denied.

What information did the telecoms share with the administration? How was this information shared? Is the arrangement continuing today? We need answers to these questions. To this day, the American people do not know the full extent of the telecoms' actions in warrantless wiretapping. If amnesty passes, we may never know. Allowing the administration and these corporations to get away with this illegal and unconstitutional behavior sets the worst type of precedent for future American generations.

Mark Klein, a retired former employee of AT&T, disclosed that the company installed monitoring hardware to allow the National Security Agency to spy on its customers. In March, Babak Pasdar, a computer security consultant, filed an affadavit with Congress attesting that a major telecommunications carrier for which he was performing contract work had provided the federal government with the ability to monitor to its entire mobile network.

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