The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. HL Mencken
Watching the Bush administration posture and preen about how terribly unsafe we are since the House didn’t vote for telecom immunity is like a perfect case study in just how brazenly the government can lie to people and have them believe it. Bush declared in a speech this week:
“To put it bluntly, if the enemy is calling into America, we really need to know what they’re saying, and we need to know what they’re thinking, and we need to know who they’re talking to,” Bush said at the start of his annual meeting with the nation’s governors at the White House.
No kidding. Does anyone actually dispute this? No one that I know of. Of course we need to be listening to their phone calls and reading their emails and tracking their plans and movements. No one in the entire world denies that. The question is whether we will do so with minimal safeguards in place to prevent that authority from being abused, bearing in mind that our government has a history of abusing such authority and using it to wiretap and blackmail law-abiding, legitimate organizations that opposed their policies (if you don’t believe me, look up COINTELPRO sometime).
When the House failed to pass an extension of the Protect America Act, Federal law reverted back to the old FISA law. FISA provided the bare minimum in safeguards against such abuse of authority by requiring that the executive ask a secret court for a warrant. And under the PATRIOT Act amendments, they don’t even have to meet the constitutional standard for warrants, which is probable cause; all they have to do is show that the warrant is part of a national security investigation and the court has to rubber stamp it.
But the Bush administration thinks that even that minimal standard is too much, that they should have the unilateral authority to listen to any phone call and read any email without a warrant and without ever revealing that they did so to any court – AND that no one has any right to challenge them in court for doing so because of the state secrets privilege. Secrecy, no warrants, no oversight at all – that is a perfect recipe for a police state.
Four prominent Democratic congressmen wrote an op-ed in the Washington Post earlier this week blasting Bush for this fear mongering. Ever since the Protect America Act expired they’ve been trying to convince people that we’re suddenly unable to listen to the phone conversations of terrorists. That is a flat out lie. They can do every single thing they were already doing until at least August under current law:
First, our country did not “go dark” on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush’s overheated rhetoric on this issue, the government’s orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately.
As Assistant Attorney General Kenneth Wainstein acknowledged while speaking to reporters on Feb. 14, “the directives are in force for a year, and with the expiration of the PAA, the directives that are in force remain in force until the end of that year. . . . [W]e’ll be able to continue doing surveillance based on those directives.”
On top of that, the House offered to pass an extension of that law as written but the Bush administration rejected it. The congressmen also point out what I’ve been saying all along, that under the old FISA law they can even engage in wiretapping without a warrant and can go back within 72 hours to get one if necessary:
In the remote possibility that a terrorist organization that we have never previously identified emerges, the National Security Agency could use existing authority under the Foreign Intelligence Surveillance Act (FISA) to track its communications. Since Congress passed FISA in 1978, the court governing the law’s use has approved nearly 23,000 warrant applications and rejected only five. In an emergency, the NSA or FBI can begin surveillance immediately and a FISA court order does not have to be obtained for three days.
The notion that the old FISA law was an impediment to such surveillance is patently absurd. They can wiretap anyone they want without a warrant, then go back and ask the court for a retroactive warrant to cover it. In 30 years, the FISA court has rejected a total of 5 warrants for crying out loud. This is a roadblock to intelligence gathering? Not by a long shot.
And the new lie from the administration is that without telecom immunity the phone companies will be sued for “billions of dollars.” Bush even lied and said that it’s already happening:
“Our government told them that their participation was necessary,” Bush said. “And it was, and it still is, and that what we had asked them to do was legal. And now they’re getting sued for billions of dollars. And it’s not fair.”
They are? Name the lawsuit, Mr. Bush. Name the lawsuit seeking “billions of dollars” from the phone companies. Here’s the full complaint in the ACLU’s lawsuit against AT&T over this issue on behalf of several prominent scholars. You’ll notice that it does not ask for a dime in either punitive or compensatory damages, only that if the company loses the suit they pay the legal fees. Such suits seek injunctive and declaratory relief, not “billions of dollars.” Just another lie.