Saturday, March 01, 2008


By William Fisher

At his news conference earlier this week, President Bush was in his relentless mode in insisting that the failures of Congress to pass a new domestic surveillance law put us all in dire peril.

There Will Be Blood,” he seemed to be warning. The critical intelligence we’ve already missed while our lawmakers bicker will never come back. We just won’t know if another 9/11 is being hatched somewhere in the world.

Be afraid. Be very afraid. That was Mr. Bush’s message.

But, in case you’ve only been reading the mainstream press, you might not know that there are many veteran counter-terrorism experts and legal scholars who aren’t buying Dubya’s rantings.

Four of them recently wrote to Admiral Mike McConnell, the Director of National Intelligence, to assert that “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”

The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).

As we all know, this latest controversy was triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.

A similar bill passed by the House of Representatives but the House version did not provide such immunity.

Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.

Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.

Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.

Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "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."

He added, "Our government told them that their participation was necessary. 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."

The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."

The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”

They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."

They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.

They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”

Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”

Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.

Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.

Typical is Prof. Peter Shane of the University of Ohio law school, told IPS, “Bush's position is senseless.”

He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”

His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told IPS, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”

And by Georgetown law professor David Cole, one of the nation’s preeminent Constitutional scholars. He told us: “The Bush administration has only itself to blame if there were any national security consequences from the sunsetting of the Protect America Act, as the Democrats were willing to extend the sunset until a workable compromise on permanent legislation could be worked out. If the Bush administration's national security claims are to be believed, then, it is the administration that has decided to play a game of chicken with our security. In fact, all taps authorized under the PAA will continue in place, and FISA permits the administration to place new taps on any newly identified terrorist, so there is no national security risk presented.”

But how about the poor telecom companies? Well, the question we put to Prof. Cole was this: “Wouldn't you think someone in the army of telecom lawyers understood that what the president was asking them to do was illegal and in violation of the FISA statute?”

His answer couldn’t have been more Gary Cooperish: