Ex-NYT correspondent: FISA update is 'giant step toward fascism'
Nick Juliano
Published: Thursday July 10, 2008

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For more than 20 years, Chris Hedges reported from around the globe as a foreign correspondent for the New York Times and other outlets, working from countries with little to no respect for a free and independent press, where his phone was bugged and he was trailed by government agents to prevent dissidents and whistle-blowers from speaking to him.

Now, with the adoption of a sweeping new surveillance law, the United States may become one of those countries, Hedges says.

Hedges is one of more than a dozen plaintiffs in a lawsuit against the US government brought by the American Civil Liberties Union that seeks to scuttle an update to the Foreign Intelligence Surveillance Act signed by President Bush Thursday. The ACLU says the FISA update allows the government to engage in massive, unconstitutional dragnet surveillance of Americans' phone calls and e-mails with anyone abroad.

During a conference call Thursday, Hedges recounted his work in foreign countries like the former Yugoslavia and El Salvador where his phone was bugged and government agents regularly followed him to prevent critics from speaking out. Now the same thing is beginning to happen here, he said.

"I have little doubt the passing of this FISA law essentially brings that type of surveillance system and the effectiveness of that system to the United States," he said.

According to the ACLU, the Democratic-controlled Congress has handed Bush a gift-wrapped grant of new domestic spying authority. The group says its lawsuit is perhaps the last chance to sustain Americans' confidence that a government snoop isn't listening in on every one of their international calls.

"This lawsuit is the ACLU at its best," said journalist and author Naomi Klein, another plaintiff in the suit. "It's defending the law even when the lawmakers won't"

The ACLU is representing journalists, human rights activists, lawyers and others whose jobs are likely to put them in contact with people overseas.

Klein and Hedges said the already-difficult task of gathering information from dissidents and whistle-blowers in the US and abroad would be made even more difficult with the draconian rules and lax oversight governing surveillance inherent in the FISA update.

Wiretap suspicion silenced whistle-blower on alleged Iran showdown

Hedges, who now writes books and currently contributes to The Nation and other publications, recalled receiving a tip about an alleged confrontation between a US Navy warship and an Iranian military vessel in Iranian waters that nearly escalated into an act of war. Hedges said he was given the name of a US Navy source who supposedly had witnessed the event. When he reached out to the official, Hedges was asked to provide assurances that he wasn't being monitored, which he couldn't provide, he said, because of his frequent contact with sources overseas. The source immediately cut off communication, the reporter was never able to confirm the story.

Hedges didn't know for sure that he was being monitored, but he couldn't say for sure that he wasn't. The chilling effect of surveillance he had become so familiar with while reporting in foreign countries had now scuttled his work at home.

"With that gone we take a giant step toward fascism," Hedges said during the call.

What's the difference between the parameters of the just-passed law and the National Security Agency's pre-existing ability to listen to foreigners' phone calls abroad with no oversight (ie, the NSA was always able to listen to calls, say, between Colombia and Venezuela without warrants)? Hedges explained that the new law made it more easy for Americans to get caught up in the NSA's dragnet if they make any calls abroad; for example, he said, his Navy source was based in the US but still could not be assured that their conversations were not being monitored.

"It essentially obliterates what kinds of protections we had working within our own borders," Hedges said in response to a question from RAW STORY.

The ACLU hopes the US District Court for the Southern District of New York will agree that the FISA update is unconstitutional and throw it out, forcing the nation's spies, especially those at the National Security Agency, to revert to standards of the pre-update FISA law, which first passed in 1978 and has been modified several times over the years to account for technology changes.

The lawsuit argues that plaintiffs like Hedges and Klein along with organizations like Human Rights Watch, Amnesty International and the Service Employees International Union have suffered irreparable harm from the newest statute, which does not require the NSA to get individual court warrants before intercepting conversations between the US and another country, as long as they are not specifically targeting an American.

“The new law allows the mass acquisition of Americans’ international e-mails and telephone calls,” said Jameel Jaffer, Director of the ACLU's National Security Project. “The administration has argued that the law is necessary to address the threat of terrorism, but the truth is that the law sweeps much more broadly and implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind.”

The ACLU introduced a similar lawsuit after the NSA's warrantless wiretapping program became public in December 2005. President Bush said he authorized the super-secret agency to eavesdrop without court approval beginning after Sept. 11, 2001, in what he dubbed his "Terrorist Surveillance Program."

The Sixth Circuit Court of Appeals threw out that lawsuit on the grounds that the journalists, activists and lawyers the ACLU was representing that time around did not have standing to sue the government because they could not prove their communications were intercepted in the highly classified program. The Supreme Court refused to hear the ACLU's appeal in that case, essentially rendering the case moot.

This time around, the ACLU hopes to have a better shot because its suit is based on language within a public law, rather than a secret program whose details only emerged in news reports, Jaffer said during Thursday's conference call.

Furthermore, the ACLU maintains that the Sixth Circuit was wrong in dismissing its case; filing their latest case in New York, which is part of the Second Circuit, gives another court an opportunity to consider the FISA issues.

In addition to its District Court lawsuit, the ACLU also asked the Foreign Intelligence Surveillance Court, the secret body that considers FISA-related matters, to make any of its opinions on the scope, meaning or constitutionality of the new law as open to the public as possible.