The Intelligence Cover-Up
For more than two years now, Congress, the news media, current and former national security officials, think tanks and academic institutions have been engaged in a profound debate over how to modernize the law governing electronic spying to keep pace with technology. We keep hoping President Bush will join in.Of course the real problem is the administration has already broken the law and that law breaking will see the light of day if the telecoms are taken to court.
Instead, the president offers propaganda intended to scare Americans, expand his powers, and erode civil liberties — and to ensure that no one is held to account for the illegal wiretapping he ordered after 9/11.
Consider last Thursday’s performance, as the House debated a sound bill that closes some technology gaps in the 1978 Foreign Intelligence Surveillance Act and gives government agencies new flexibility to eavesdrop, but preserves constitutional protections against unreasonable searches. Mr. Bush distorted the contents of the bill and threatened to veto it.
He accused House leaders of “putting in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists.” Actually, the bill merely ensures that special judges continue to supervise surveillance of American citizens. The “cumbersome process” is really a court that acts swiftly and has refused only a half-dozen of more than 21,000 wiretap requests in its nearly 30 years of existence.
What Mr. Bush wants is to be able to listen to your international telephone calls and read your international e-mail whenever he wants, without a court being able to prevent it or judge the legality of his actions.
Finally, Mr. Bush said it was vital to national security to give amnesty to any company that turned over data on Americans without a court order. The purpose of this amnesty is not to protect national secrets — that could be done during a trial — but to make sure that the full damage to Americans’ civil liberties is never revealed. Mr. Bush also objects to a provision that would create a committee to examine his warrantless spying program.Over at CATO Timothy B. Lee quotes comments by that left wing agitator Willaim Safire when the original FISA bill was passed in 1978.
Mr. Bush wanted the House to approve the Senate’s version of the bill, which includes Mr. Bush’s amnesty and does not do nearly as good a job of preserving Americans’ rights. We were glad the House ignored his bluster. If the Senate cannot summon the courage and good sense to follow suit, there is no rush to pass a law.
The president will continue to claim the country is in grave danger over this issue, but it is not. The real danger is for Mr. Bush. A good law — like the House bill — would allow Americans to finally see the breathtaking extent of his lawless behavior.
Predictably, opponents of warrantless wiretapping cheered; the act seems to require a court warrant before tapping can begin. But nobody is reading the fine print, which adds up to the most sweeping authorization for the increase and abuse of wiretapping and bugging in our history.Lee continues:
Conservatives like to assist law enforcement, and to curtail espionage; we do not like to make it harder for “our side.” But this natural inclination to help the law must be outweighed by a responsibility to protect the law-abiding individual from the power of government to intrude. And this bill would turn every telephone instrument in every home into a suspected household spy.
Huey Long once said that if fascism ever came to America, it would come in Democratic form; in this bill, Big Brother is on the way, and he is cloaked in the mantle of civil liberties.
Since Safire wrote those words, FISA has been repeatedly amended to further reduce judicial oversight of eavesdropping, most importantly with the Patriot Act in October 2001. The law on the books in early 2006 was even more permissive than the legislation Safire is blasted as an assault on civil liberties. Yet the Bush administration has been so successful at shifting the terms of the debate that even a lot of self-described civil libertarians are conceding that FISA still places too many restrictions on domestic wiretapping activities. The debate is now between a House bill that further waters down judicial oversight over Americans’ international communications and a Senate bill that virtually eliminates judicial oversight of international calls.I hope that the House members will read that last paragraph over and over.
One of the lessons here, I think, is that civil liberties won’t be preserved through compromise. The partisans of ever-increasing executive power aren’t likely to go away any time soon. If Congress compromises and agrees to further expand executive wiretapping powers, a future president will come back to Congress and argue that the law is still too restrictive and still more compromises are needed. President Clinton did it in the 1990s. President Bush is doing it now. At some point, Congress just has to say no.
One of the lessons here, I think, is that civil liberties won’t be preserved through compromise.