Fear, Frenzy, and FISA-How the * admin has kept Congress locked in a Sept. 12 state of panic

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http://www.reason.com/news/show/121797.html

Fear, Frenzy, and FISA

How the Bush administration has kept Congress locked in a September 12 state of panic.

Julian Sanchez | August 7, 2007

Like Bill Murray's hapless weatherman in Groundhog Day, America is locked in a perpetual September 12, 2001. How else to explain this weekend's frenzied passage of a sweeping amendment to the Foreign Intelligence Surveillance Act (FISA), effectively authorizing the program of extrajudicial wiretaps first approved in secret by President George W. Bush shortly after the terrorist attacks of 2001? How else to make sense of a Democratic Congress capitulating to the demands of a wildly unpopular executive for yet another expansion of government surveillance powers, mere months after the disclosure of the rampant abuses that followed the last such expansion?

The hasty passage of the massive USA PATRIOT Act, a scant 45 days after those attacks, was ill-considered but understandable. Six years later, however, the administration has grown comfortable with the prerogatives panic affords. And, perversely, it has learned that it can continue to wield those prerogatives even under a Democratic majority, provided it insists on regarding Congress always and only as a last resort.

Consider the provenance of this "emergency" legislation. President Bush first authorized the National Security Agency to carry out a range of surveillance activities without court order, the full scope of which is still unknown, but which at the least included monitoring communications between persons in the United States and targets abroad. (Wholly international communications had always been exempt from the privacy restrictions imposed by U.S. law.) When this was revealed by The New York Times late in 2005, the administration insisted that national security required that intelligence agents be allowed to bypass even the super-secret—and highly compliant—FISA courts. Then, following the 2006 midterm elections, which gave Democrats a congressional majority, the Department of Justice abruptly announced that it had found a way to work within FISA after all. Finally, according to The LA Times, a spring ruling by a FISA court judge found that even this restricted version of the six-year-old program ran afoul of the law.

Suddenly it became urgent that Congress "modernize" what was invariably described as "the 1978 FISA statute," conjuring images of forlorn agents in white polyester leisure suits vainly hunting for al-Qaeda terrorists hidden under Pet Rocks. Yet FISA had already been updated dozens of times since its initial passage, including six major amendments since the September 11 attacks, giving the administration myriad opportunities to request all the "modernization" it required, subject to thorough public debate. But even this manufactured urgency, it seems, was not enough. On the eve of the legislature's August recess, House Democrats had worked out a compromise bill with Director of National Intelligence Michael McConnell, which preserved a modicum of judicial oversight over the expanded surveillance powers it granted. But the White House pronounced this unsatisfactory, threatening a veto and demanding still broader powers. If Democrats did not yield completely before Congress adjourned, Bush said, they would "put our national security at risk."

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When the NSA program of warrantless wiretaps initially came to light, Bush's lawyers argued that the Authorization for Use of Military Force, which empowered the president to hunt down the perpetrators of the 9/11 attacks, had implicitly licensed this eavesdropping as well. So we know that this administration is not above claiming that a law authorizes sweeping new surveillance programs, even when the legislators who voted on the law had no knowledge such programs existed. The speed with which this FISA amendment passed guarantees that legislators cannot have had time to consider carefully precisely how much latitude their wording can be construed to grant an executive who has consistently exhibited a disturbing zeal for squeezing the maximum amount of power from every carelessly placed comma.

But then, that was almost certainly the point. Ingenious as the White House has proven at recreating the expedient panic of 2001, however, it is not September 12 anymore. Along with a chance to more cooly appraise the terrorist threat, the intervening years have provided ample evidence of how little this administration can be trusted with its existing powers, let alone new ones. When lawmakers return to Washington this coming September, they might try a bit harder to recall the year as well as the month.

Julian Sanchez is a contributing editor to reason.

[Demeter]

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