Playing The Fear Card Again
In late 2005, President Bush acknowledged that his administration had authorized a secret warrantless domestic surveillance program. The administration's program operated in violation of the Constitution's Fourth Amendment restriction against "unreasonable searches" without a warrant. It also violated of federal law -- the Foreign Intelligence Surveillance Act (FISA) -- which makes it a crime to conduct electronic surveillance, except as "authorized by and conducted pursuant to a search warrant or court order." For the past two years, Congress has sought to rein in Bush's reckless disregard of the Constitution and the law. In early Aug. 2007, Congress unwisely passed a temporary expansion of FISA, called the Protect America Act (PAA), which provided virtually unchecked power to the administration to spy on American communications without warrants. Tomorrow, the unnecessary and dangerous powers given to the administration by Congress six months ago are set to expire. Now, as Congress and the administration wrangle over how to resolve their differences on surveillance legislation, Bush is reacting by spouting fear. Yesterday, he warned Congress that if it does not greatly expand the president's powers to spy, then the country faces terror strikes that would make 9/11 "pale by comparison." Rep. Ted Poe (R-TX) added that Congress's unwillingness to cater to Bush's demands means that "there is probably joy throughout the terrorist cells throughout the world."
LET IT EXPIRE: Intelligence experts concede that very little will actually change Saturday if the PAA is allowed to expire. "Expiration of the current Protect America Act would not mean an immediate end to wiretapping." Every spying authorization already entered under the law "can remain in effect for 12 months from the date it was issued." As Richard Clarke, Bush's own former counterterrorism adviser, wrote recently in the Philadelphia Inquirer, "Let me be clear: Our ability to track and monitor terrorists overseas would not cease should the Protect America Act expire. If this were true, the president would not threaten to terminate any temporary extension with his veto pen. All surveillance currently occurring would continue even after legislative provisions lapsed because authorizations issued under the act are in effect up to a full year." Moreover, new authorizations would be permitted through the underlying FISA law, which permits emergency surveillance of terrorists as long as a warrant is applied for within 72 hours. Kate Martin, Director of the Center for National Security Studies, added, "If the government learns of new individuals apparently plotting terrorist activities, it can immediately surveil such individuals -- whether they are here or calling here from abroad -- by obtaining a FISA court order." Lastly, the administration can continue to use its authority under Executive Order 12333 to conduct surveillance abroad of any known or suspected terrorist.
NO FEAR: President Franklin Roosevelt's cautionary admonition that "the only thing we have to fear is fear itself" remains particularly instructive in the current debate over surveillance. "For this president, fear is an easier political tactic than compromise," wrote Clarke. "With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections." Earlier this week, Bush and his conservative allies in Congress thwarted the passage of a 21-day extension of the PAA. House Judiciary Committee Chairman John Conyers (D-MI) explained, "The President and House Republicans cannot have it both ways, simultaneously arguing that the PAA is essential to national security and also engineering the defeat of an extension of it. The consequences for inaction are their responsibility." In a terse and direct letter to Bush, House Intelligence Committee Chairman Silvestre Reyes (D-TX) said, "I, for one, do not intend to back down â€" not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear. We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won."
PUTTING TELEPHONE COMPANIES FIRST: The biggest sticking point in negotiations between Congress and the President over surveillance is whether to grant retroactive amnesty to telecommunications companies that broke the law and cooperated with the administration's illegal requests. Caroline Frederickson, director of the American Civil Liberties Union's legislative office, urged Congress not to "give the phone companies a 'get out of jail free' card. If the companies really 'did the right thing' as the president said, then they have nothing to fear from going to court." Bush has declared he will veto any bill that does not include retroactive immunity. Sen. Edward Kennedy (D-MA) pointed out that "the president has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. ... So if we take the president at his word, he's willing to let Americans die to protect the phone companies."