Administration Response to Spy Bill Critics Shows Why the "Surveillance Gap" Should Never Have Been Filled

The White House is pushing back against critics who say the scope of the recent expansion of government spy powers does much more than close the so-called "surveillance gap" – and grants the government extraordinary powers with little meaningful oversight. The White House argues the news powers are only about targeting bad guys abroad, according to Greg Miller of the Los Angeles Times.

But officials declined to provide details about how the new capabilities might be used by the National Security Agency and other spy services. And in many cases, they could point only to internal monitoring mechanisms to prevent abuse of the new rules that appear to give the government greater authority to tap into the traffic flowing across U.S. telecommunications networks.

Officials rejected assertions that the new capabilities would enable the government to cast electronic "drift nets" that might ensnare U.S. citizens, even if by accident.

"We're really talking about targeting people, directed targeting at people overseas," said a senior administration official who was among three authorized to discuss the legislation — on the condition they not be identified — in a conference call with reporters on Monday. "If the target is overseas, you don't need a warrant. If the target is in the United States, you do."

The White House also took specific aim at concerns that the new legislation would amount to the expansion of a controversial — and critics contend unconstitutional — warrantless wiretapping program that President Bush authorized after the 9/11 attacks.

White House Deputy Press Secretary Tony Fratto called such assertions "unfounded" and "highly misleading."

But intelligence experts said there were an array of provisions in the new legislation that appeared to make it possible for the government to engage in intelligence-collection activities that the Bush administration officials were discounting.

"They are trying to shift the terms of the debate to their intentions and away from the meaning of the new law," said Steven Aftergood, an intelligence policy analyst at the Federation of American Scientists.

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Pay careful attention to the word "targeting." That would be when the eavesdroppers are targeting a number or a known person. Until the government has that, any interception, data mining or listening in on conversations doesn't count as surveillance. In other words, if EVERYONE is the target, no one is the target and its not surveillance.

Giant driftnets dipped into the internet's bit streams? Data mining of the records of all phone calls placed in America to find suspicious patterns? Computer scanning of emails and phone calls for key words? Not surveillance, according to the snoopers.

Also if you are an American outside the county, the new bill just dictated that you left your 4th Amendment rights at the border. It's not surveillance if you are across the border.

Even if the government spooks only want to target known bad guys, the Administration successfully squelched proposals for oversight that would have uncovered any unsavory doings and its defenders are now dissembling about the scope of the new changes to the nation's spy laws.

Having just read Tim Weiner's devastating history of the CIA, Legacy of Ashes, and Jane Mayer's New Yorker piece on the CIA's secret prison sites, it seems clear that the so-called "surveillance gap" was a feature, not a bug. The so-called "surveillance gap" (aka the mineshaft gap) refers to a requirement that wiretapping that happens on domestic soil needs a warrant, even if the targets are foreigners. Repealing that prohibition gives the government license to legally establish spy outposts on the nation's telecommunication switches and communication providers (think Gmail, Skype, AOL IM) with virtually no court oversight.

That means the only protection Americans have from intelligence agents turning those outposts to spy on Americans is the will of the government employees controlling the direction of the microphones.

And if history, both distant and recent, tells us anything, it's that men acting in what they believe to be the service of their country are willing to violate the Constitution, international rules of war and human rights.

And let's not forget what a California Justice Department spokesperson once said about why intelligence officials were spying on and filing threat reports on anti-war protestors:

"You can make an easy kind of a link that, if you have a protest group protesting a war where the cause that's being fought against is international terrorism, you might have terrorism at that (protest)," said [Mike] Van Winkle, of the state Justice Department. "You can almost argue that a protest against that is a terrorist act."

Van Winkle wasn't a crazy ideologue. I worked with him trying to run down a story or two. But when you work for a spy agency, pretty soon everyone starts to look like a bad guy and ends begin to justify means. That's why secretive agencies, if they are to be tolerated at all in a democratic society, need strict limits and close oversight. Those principles are nowhere to be found in the so-called Protect America Act.

Photo: Ryan Lackey