Dispatches from the Creation Wars

Democrats Cave on FISA Amendment

This weekend, Congress rather inexplicably caved in to the Bush administration and passed an amendment to FISA that essentially rubber stamps their desire to use warrantless wiretaps whenever they want. The amendment is only good for 6 months but it is still quite troubling. Here’s the absurd defense of the amendment:

The bill would give the National Security Agency the right to collect such communications in the future without a warrant. But it goes further than that: It also would allow the interception and recording of electronic communications involving, at least in part, people “reasonably believed to be outside the United States” without a court’s order or oversight.

White House spokesman Tony Fratto emphasized that the bill is not meant to increase eavesdropping on Americans or “to affect in any way the legitimate privacy rights” of U.S. citizens. Data related to Americans in communications with foreigners who are the targets of a U.S. terrorism investigation could be monitored only if intelligence officials have a reasonable expectation of learning information relevant to that probe, a senior U.S. official said.


There’s just one tiny little problem with this: there’s no way of knowing the administration is following those guidelines if they don’t have to ask for warrants, even retroactively. Yes, there is a provision in the new amendment requiring that the program be certified as having adequate safeguards, but that’s by the Director of National Intelligence and the Attorney General; that doesn’t exactly soothe the fears of civil libertarians.

There’s also a provision that allows the FISA court to review the program, but the standard of review is that they can only overrule any part of the program if the certification by the administration was “clearly erroneous.” And once they perform that review, there is no protection against abuses in any individual case because there is no requirement that the administration get warrants at all, even retroactively.

That means that there’s essentially nothing to prevent the administration from certifying the program being done one way and then doing it another way – because there’s no further review after that and there’s no requirement for warrants showing in any particular case that the government has a legitimate reason for surveiling a particular target. Rather than strengthening the safeguards, Congress further weakened them. Why? Glenn Greenwald has it about right:

Prior to the November, 2006 elections, the Bush administration tried desperately to force the Congress to enact new FISA legislation to legalize warrantless eavesdropping. The Democrats resisted just enough to prevent its enactment. Karl Rove and Republicans generally then ran around the country exploiting that obstructionism in order to accuse Democrats of being “soft on terror” and “wanting to prevent the President from listening in when Osama calls,” the Republicans were crushed in that election, and Democrats obtained an historic victory. In the not-blue state of Montana, Jon Tester defeated an incumbant GOP Senator by running on a platform of repealing the Patriot Act in its entirety. Wouldn’t the most basic rationality compel Democrats to draw the conclusion that this rank Terrorism fear-mongering does not actually work?

Yet here they are, after refusing to legalize warrantless eavesdropping prior to their midterm victory, allowing this legislation to pass now that they are in the majority. It is as politically self-destructive as it is unconscionable on the merits.

While the premise of this behavior is that Democrats must avoid appearing “soft” and “weak,” one article after the next describes their behavior as “surrendering,” “capitulating,” “bowing to pressure,” “caving in” and “suffering defeat” — all at the hands of a weakened, isolated and pervasively despised lame duck President whose political party is in shambles. The worst thing one can be in American politics and American culture generally is a loser, and Democrats perpetually turn themselves into losers and convince themselves when doing so that they are appearing “strong” and “tough.”

Pure cowardice.