Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
Go on, admit it; you're scared. The House of Representatives didn't pass an extension of the law allowing Bush to wiretap American citizens without a warrant and now the terrorists are going to kill us all. John McCain is railing against the Democrats over it - the same John McCain who has spent his entire political life speaking out against torture but voted not to ban waterboarding the other day - and he's now adopted Bush's "evildoer" language.
Because the House didn't vote to extend the earlier "compromise" (read: total surrender by the Democrats), the law now reverts to the old FISA statute and the Patriot Act amendments to that statute. The Bush administration and McCain are telling the American people that this leaves them completely unprotected against the "evildoers"; here's what it really means:
It means that the government, if it wants to listen in on a phone call between two people overseas, say two "evildoers" talking in Afghanistan, they can do so all they want with no legal restrictions on them whatsoever; that is the way it has always been and it still is. And if they want to listen in on a phone call or intercept an email between someone in another country and an American citizen, they can still go ahead and do it and they have three days to ask the secret FISA court for a retroactive warrant.
That's right, they can still do it without a warrant and they can just go back and ask for one after the intercept has already taken place. And when they ask for one, they don't have to show probable cause as the 4th amendment requires, they only have to show that the request is part of an ongoing national security investigation and, under the Patriot Act, the judge has to grant it.
Oh my god, we're so unprotected! I'm scared, someone hold me! The Republican party might as well just go ahead and adopt their new slogan: we have nothing to sell but fear itself.
Comments
When this issue first cropped up and the Senate Judiciary Committee had hearings, I watched some of the hearings on CSPAN.
Sen. Kennedy made it very clear that the Democrats would support added flexibility, like increasing the retroactive time needed between the actual wiretap and request for a retroactive warrant. He even used the example of where he personally got involved to get the Senate to originally extend the retroactive time soon after 9/11. His overall point was that he supported, and could get the Dem votes neccesary, to come up with a method that allowed our intelligence agencies to always wiretap, without losing the oversight powers of the FISA courts to insure an adequate check to contain the relevant agencies from abusing this power.
The silence on the GOP side of the Committee table was deafening. The GOP clearly use this issue as a political tool to make the Democrats appear weak on fighting terrorism, knowing the media would not properly frame this issue. Thus, the GOP is willing to destroy, not defend, the constitution to score political points. The Democrats are too scared, and I believe too stupid, to adequately frame this issue in the media.
Besides giving the GOP a talking point advantage, another harm for the American people is that our media,when they are located within the states, are not able to get the sources they've developed when they're overseas to communicate with them. Christopher Hitchens has done the best job of showing why this isn't about "Aunt Sadie talking to her sister in Paris" like VP Cheney framed it, but instead another successful effort by the White House to suppress the ability of the media to report on happenings in the Middle East.
While I continue to be extremely embarrassed by my party (I'm a frustrated Republican whose been voting mostly for Dems since 2002), the Democrats need to start doing a better job of showing some courage and get a sense of history in order to better present their case in the media. In terms of our foundational principles, it's on their side.
Posted by: Michael Heath | February 17, 2008 11:32 AM
The only thing that expired on Friday was the immunity for the telecommunications companies for breaking the law* requiring court orders for wiretaps. If they did, say the telcos, they did it out of patriotism in the wake of 9/11. However, just a few weeks ago the news broke that telcos had shut off some wiretaps because the FBI didn't pay the bills in a timely manner. Sorry, guys, you can't have it both ways. Shutting off "vital national security activities" for late payment blows the "patriotism" defense right out of the water.
* If they did, which nobody's really admitting, but if they didn't, why is immunity such a big deal that Dubya threatened to veto any bill without it? And if the wiretapping is so vital to national security, why is he willing to put American lives in danger just to protect the telcos from lawsuits?
Posted by: Pieter B | February 17, 2008 2:26 PM
Maybe there are some Dems who don't really want those checks and balances in place. After all, the next prez is likely to be one of their own, and it would be mighty convenient.
Posted by: Engineer-Poet | February 17, 2008 2:30 PM
This is typical of the lack of thought most of the wingers are willing or able to invest before cranking up the bitch machine. The nature of the surveillance or the language or implications of relevant statues are of no apparent interest to these people -- only the fact that some Democrat opposes something Bush says about the war and is therefore rooting for everyone in America to be covered in burkas and speaking Farsi by 2012. Of the 35% or whatever of voters who have always felt Bush is doing a good job with everything, I am guessing 95% of them are mindless reactionares who cream in their pants when somone yells PAAAAAAAAAAAATRIOT!!! and shit them when someone suggests that there probably should be some rules in place when it comes to spying.
I also wonder why these assholes can holler that gun control legislation cannot stop a Va. Tech or NIU massacre, yet simultaneously believe that wiretapping can forestall 9/11-style attacks. Pick your side on that one, but at least be consistent.
Posted by: kemibe | February 17, 2008 3:52 PM
This is typical of the lack of thought most of the wingers are willing or able to invest before cranking up the bitch machine. The nature of the surveillance or the language or implications of relevant statues are of no apparent interest to these people -- only the fact that some Democrat opposes something Bush says about the war and is therefore rooting for everyone in America to be covered in burkas and speaking Farsi by 2012. Of the 35% or whatever of voters who have always felt Bush is doing a good job with everything, I am guessing 95% of them are mindless reactionares who cream in their pants when somone yells PAAAAAAAAAAAATRIOT!!! and shit them when someone suggests that there probably should be some rules in place when it comes to spying.
I also wonder why these assholes can holler that gun control legislation cannot stop a Va. Tech or NIU massacre, yet simultaneously believe that wiretapping can forestall 9/11-style attacks. Pick your side on that one, but at least be consistent.
Posted by: kemibe | February 17, 2008 3:53 PM
*grin* Done. I support the 2nd and oppose warrantless searches.
My local newspaper has an online edition with a wonderful array of cliched right and left wingers. They cracked me up the other day (more than normal) when in one thread, a right winger invoked the old Ben Franklin libery-safety-deserve-neither quote at almost the same time a left winger in another thread was doing the same. The man on the right of course using the quote to oppose gun control and the man of the left using the same quote to oppose the Patriot Act.
Posted by: Sean | February 17, 2008 4:10 PM
Could it be that if the telcos don't have legal protection then they might be sued; and lawsuits might expose the extent to which his administration has been engaging in unconstitutional behavior?
Posted by: Troy Britain | February 17, 2008 7:32 PM
It means that the government, if it wants to listen in on a phone call between two people overseas, say two "evildoers" talking in Afghanistan, they can do so all they want with no legal restrictions on them whatsoever; that is the way it has always been and it still is.
For the record, there is one wrinkle here, which is that if there is a phone call between two people overseas which is routed through the United States-- something which can happen in modern telecommunications systems, but which was not forseen under FISA as currently enacted-- then the government under the current rules must get a retroactive warrant if they tap that call, even though both parties in the phone call are outside the United States.
This actually is something that probably should be fixed, and which Chris Dodd, etc, would like to fix. Oddly though the Bush Administration refuses to let Congress fix that loophole unless the administration also gets PAA-style warrantless wiretaps and retroactive immunity for the warrantless wiretapping already performed; and Bush insists he will veto such legislation unless his friends in the telecom industry get immunity for the illegal acts they have already performed on his behalf. Hmm.
Posted by: Coin | February 17, 2008 8:06 PM
Troy, you got it in one.
Posted by: Pieter B | February 17, 2008 10:52 PM
Kudos to the house Democrats, I didn't think they had it in them.
Posted by: James K | February 18, 2008 1:44 AM
But if the telecoms don't have immunity, however will we get them to break the law?
That's why we're in such danger. We expect the good and wise Corporations to follow the law. Everybody knows laws are supposed to keep people in their place, not to interfere with business.
Posted by: BaldApe | February 18, 2008 11:42 AM
Go on, admit it; you're scared.
Uh, actually, no, I'm not. Or, if I want to be precise, no more than I was before.
But wait, let me amend that again. I am scared of something: I'm scared that the defiance by the House will prove to be just another hiccup before the misleadership again drops to its knees swearing fealty to the Great God Must Not Look "Weak on Security" Before the Election.
Posted by: LarryE | February 18, 2008 12:26 PM
"oh my god, we're so unprotected! I'm scared, someone hold me! The Republican party might as well just go ahead and adopt their new slogan: we have nothing to sell but fear itself.'
No doubt. This is a ludicrious argument. I tried listening to a Christian Radio station the other day. They got on and started talking about this. I turned it off. Many will support a man they totally disapprove(socially) of based on a war that they should disaprove of and then want to help enact legislation that at times makes us no better than the tyrants we are trying to fight. Not everything has to come down to good vs.evil. There is a lot of gray in some of these people's black and white worlds
Posted by: King of Ireland | February 18, 2008 3:28 PM
King of Ireland:
Try telling that to someone whose whole worldview depends on that being true. For people who rest the whole of their emotional well-being on the certainty of the battle between good and evil, it's impossible to view the world otherwise: it would require disassembling the entirety of how they interpret everything they see and know, and that's an almost impossible thing for most to do.
Posted by: Patrick | February 18, 2008 4:52 PM
"Try telling that to someone whose whole worldview depends on that being true. For people who rest the whole of their emotional well-being on the certainty of the battle between good and evil, it's impossible to view the world otherwise: it would require disassembling the entirety of how they interpret everything they see and know, and that's an almost impossible thing for most to do."
This is the fallacy that most of "Evangelical Christianity" has swallowed over the years. The argument goes like this: Marx was an atheist, Marx created socialism, atheism is evil, so socialism is evil. Most who state this have not read a word he wrote. I have and I think the overarching cause he was addressing was something that needed to die: The use of institutional religion by the Holy Roman empire to oppress the masses. This is the exactly what the enlightenment thinkers were reacting to.
Thus, to set up Theocracies again would be insane. In fact, it is going against the world wide populist tide against institutional religion and theocratic governments. My fear is that the powers who controlled the masses in the Dark Ages have regrouped and are packaging their desire to return to the "statism" of the past in the name of "democracy". I really think this is what Iraq, Burma, Pakistan, and others is all about. Same leopard with different spots. In the end, it will use God or religion to do it wait and see.
Posted by: King of Ireland | February 19, 2008 12:58 PM
Well... regrettable as the lack of privacy has become, don't you think it's a necessary evil rather than something the "evil government" is doing? Hey... if some guy sitting someplace in Washington listening to me talk to my best friend about my crappy life means that some ass whose trying to bring harm to the US might get caught... don't you THINK it's a better thing that whatever the means, they got hte bad guy? The US might be doing something that we don't quite like, but if it means our lives are gonna be saved... then I vote that they should do whatever it takes to achieve that!
Posted by: Indunil Fernando | February 19, 2008 1:28 PM
No. This is absolutely something the government is doing, and it has nothing to do with providing more safety. When the government starts taking away your rights, you damn well better be worried. Ben Franklin wasn't just talking to hear himself talk when he said "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Posted by: Jason I. | February 19, 2008 1:49 PM
Indunil Fernando wrote:
When you think about it, this is actually an incredibly cowardly stance. Rather than accept that freedom contains risks you wouldn't otherwise have in a dictatorship, you're willing to accept the government's promise that they'll protect you from the bad guys.
Nevermind the fact that the government has an absolutely atrocious intelligence and safety record. They promise it, but it's not at all apparent that they can deliver the safety they promise you.
And in return, you give them the most basic of your human rights, in exchange for a promise they most assuredly can't keep.
Freedom is risky business. Our founders happened to believe that the benefits of a truly free society were worth the potential risks, risks that over the lifetime of our nation have proven to be hardly worth mentioning. As heinous as 9/11 was, it in no way fundamentally alters the strength or security of our nation.
Face your fear, or you cede control over your life and your well-being to anyone or anything that invokes that fear. It's your choice.
Finally: You've set up a false dichotomy. The choice isn't between letting the government listen to you talk about your crappy life and letting a terrorist get away. It's about creating an environment of surveillance where even the SUGGESTION of political dissent can get you thrown in jail (and yes - it happens, even in the US). I don't trust anyone with those tools - not my enemies and not my friends. To that end, I say, give NOBODY that power, and trust the American people to be brave against the threats the world sends against us. You're not going to prevent every catastrophe or attack, but you'll sure as hell destroy a nation if you try.
America was born to be the land of the free and the home of the brave. Recently, we've been the land of the enslaved and the home of the cowardly. Stand up. Be a (wo)man. Don't be afraid.
Freedom is written in the blood of those who die defending its ideals. From soldiers to schoolteachers, this is OUR nation and I for one am willing to accept the dangers inherent in being free.
Posted by: Patrick | February 19, 2008 3:07 PM
Fellow Americans, would anyone out there who has been attack'd by terrorists ever, or knows of anyone that has been attack'd by terrorists ever, please share your story:
Posted by: William | March 12, 2008 7:49 AM
@Patrick.
Well put! I stand by (freely) your comments too.
Posted by: James | March 12, 2008 11:08 AM