SCOTUS-Backed Surveillance Law Built on a Bush-Era Lie

Army Spc. Alex Jimenez died without ever learning he would be used to advance the Bush agenda. Jimenez, a U.S. soldier originally from Queens, was abducted in Iraq alongwith two others in May 2007. But he quickly became more than another missing soldier. The Bush administration decided to spin his capture, plunging Americans into a civil-liberties head game, and leading to a Supreme Court ruling last week that activists fear will leave the Fourth Amendment permanently weakened. 

After he was captured, Jimenez became the focus of media attention not because there was anything exceptional about his mission or the attack on his unit, but because his case was used to highlight a law the Bush administration blamed for delaying the search for his captors. Bush officials said the hunt was hampered by the bureaucratic hurdle of what’s known as the Foreign Intelligence Surveillance Act, or FISA, which was enacted in 1978 to require the approval of a special court before wiretapping people inside the U.S. suspected of terrorism or espionage. That requirement cost Jimenez’s would-be rescuers precious hours, the Bushies’ narrative explained. The FISA requirement could lead to the loss of American lives.

 The supposed delay in wiretapping Jimenez’s captors was reported by the Associated Press on August 3, 2007, just as the Protect America Act (PAA), the law President Bush had sought as a “fix” for FISA, was being voted on in Congress. The Christian Science Monitor reported that the delay was again discussed in September by Director of National Intelligence Mike McConnell as he urged Congress to pass a law making permanent the changes contained in the temporary PAA. (A few weeks later, in October, according to an Army statement, Jimenez’s weapons, including an M-249 “squad automatic weapon,” were recovered in an Iraqi village, but not his body.)

 And so a drama of violence and death in Iraq became part of a debate in Washington about wiretapping and the Fourth Amendment. It is part of a narrative that stretches back to The New York Times‘ 2005 revelation about warrantless wiretapping by the National Security Agency. It is a debate that takes place with almost no concrete evidence about how, exactly, the government has used those powers: No public record exists of the NSA program or FISA court orders. And it is a debate that was rekindled a week ago with the Supreme Court’s dismissal of a lawsuit by a group of plaintiffs who had sued to block the expanded wiretapping powers of 2008’s FISA Amendments Act (FAA), which also gave telecoms immunity against lawsuits brought by those who believed they had been illegally wiretapped. The FAA was renewed for five years in 2012.

 With the Supreme Court’s dismissal of that case on February 26, we seem one step closer to permanently enshrining a legal regime that, as of today, allows the government to eavesdrop without warrants on foreigners believed to be outside the country in order to collect “foreign intelligence information,” a term that is broadly defined. But that doesn’t just affect non-Americans. In a brief filed last year with the court, the American Civil Liberties Union explained that “Under the FAA, the government can target anyone—human rights researchers, academics, attorneys, political activists, journalists—simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals.” Got a client in Bahrain? A source in Somalia? You are now fair game. “More than 40 million Americans travel overseas each year,” Lisa Graves, the executive director of the Center for Media and Democracy and a former deputy assistant attorney general, told the Voice. “Increased globalization should result in strengthened privacy protections for Americans, but changes to FISA pushed through by President Bush have weakened privacy protections for Americans at home and abroad.”

 Graves’s concern is easier to understand given that it seems the Bush administration resorted to outright deception to get the new rules approved. Much like aluminum tubes and purported yellowcake uranium were put forward as grounds for preemptive war in Iraq, the central premise advanced by the Bush administration as justification for wiretapping—and for stripping away the requirement of a warrant from the FISA court—was at best wrong, and very likely a lie. And this central “fact” was so banal and technocratic that it seems to have gone unnoticed all these years: Government officials claimed that phone calls made between two points within a distant country, or between two distant countries, routinely passed through telecommunications hubs or switches inside the U.S. The officials insisted that surveillance of these calls was not permitted without a warrant from the FISA court, leading to a dangerous, even lethal, backlog of warrant applications. While U.S. intelligence officials waited for the FISA court to issue their warrants, this storyline read, scads of terrorist communications went undetected, creating the risk of another 9/11. 

 The claim about foreign phone calls routinely passing through U.S. switches was widely reported, including by The New York Times and The New Yorker. For example, in a New Yorker profile of McConnell, published on January 21, 2008, Lawrence Wright reports that McConnell, in his office, explained the administration’s FISA problem by walking over to a world map on his wall. ” ‘Terrorist on a cell phone, right here’—he pointed at Iraq—’talking to a tower, happens all the time, no warrant. Tower goes up to a microwave tower, no warrant. Goes up to a satellite, back to the ground station, no warrant. Now, let us suppose that it goes up to a satellite, and in the process it does this’—his finger darted to the U.S. before angling back to Pakistan. ‘Gotta have a warrant! So it was crazy.’ “

 But calls between two points in Iraq or any other foreign country did not and do not routinely pass through switches inside the U.S. Indeed it seems they almost never do. Not only was McConnell’s description untrue, it borders on ridiculous. As one FCC official, Narda Jones, told the Voice, “Usually the cost benefit is to carry traffic over the shortest distance, unless a country requires a fee. . . . Everything I know and understand is that it’s cheaper to go the shortest distance.” Daniel Sudnick worked for a year in Iraq, helping to oversee the establishment of a telecommunications infrastructure, including landline and cell-phone networks, for the Coalition Provisional Authority after the 2003 invasion. Asked by the Voice if he had ever known of calls between two points in Iraq traveling to a switch inside the U.S. and back to Iraq to be completed, Sudnick answered, “No. I don’t know why anybody would want to do that.” An officer on a ship that repairs transatlantic undersea fiber-optic cables told us, “Since bandwidth is at a premium, I can’t see how it makes financial sense to lease space on another telecom’s wire to cross an ocean and back again.” 

 The “crazy” situation McConnell outlined to Wright was a fiction. What’s more, the powers the FAA was designed to make permanent already existed in Army Regulation 381-10, which is dated May 3, 2007, and carries the signature of the administrative assistant to the secretary of the U.S. Army. The regulation makes clear that decisions about wiretapping non-U.S. persons (those who are neither U.S. citizens nor permanent residents) in a foreign country are left to officers on the ground with the authority to initiate surveillance. The regulation leaves no doubt that FISA was never needed to wiretap Iraqi insurgents in Iraq. One of its provisions allows wiretapping without a warrant of any non-U.S. person from any location, as long as the target is outside the U.S. As Louis Chiarella, a former judge advocate in the U.S. Army who has written about FISA, told the Voice, he knew of no instance where FISA and the military regulations were in conflict. In other words, every tool, legal or electronic, needed to find Jimenez—or prevent another 9/11—was already in place.

 In a Rose Garden ceremony at the White House on July 10, 2008, George Bush signed the FISA Amendments Act into law. The following day, the Pentagon announced that Jimenez’s remains had been identified. The press release describes the attack south of Baghdad in which Jimenez was captured and notes, “The incident is under investigation.”

 Alex Jimenez was promoted twice after capture: to sergeant in January 2008, and posthumously to staff sergeant that July.