Alex Constantine - September 23, 2007
By Kate Randall
22 September 2007
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President Bush appeared Wednesday at the National Security Agency’s (NSA) headquarters to call on Congress to make permanent and expand provisions of the “Protect America Act of 2007.” The bill—passed with bipartisan support in August just prior to the Congressional recess—grants vast powers to the government to carry out spying against the population of the US and the world.
Speaking at the NSA’s National Threat Operations Center in Fort Meade, Maryland, Bush argued, “Without these tools, it will be harder to figure out what our enemies are doing to train, recruit and infiltrate operatives into America.” Under the act’s provisions, the government can conduct warrantless wiretapping of electronic communications so long as one end of the communication is “reasonably believed to be located outside the United States.”
The law amends the 1978 Foreign Intelligence Surveillance Act (FISA), which governs surveillance of domestic communications. Before its passage, agencies such as the NSA and CIA had been required to obtain a warrant from a special FISA court. The government can now carry out such warrantless wiretapping for up to a year following certification from the attorney general and the director of national intelligence (DNI).
The vague provisions of the law would allow the government discretion to monitor, without a warrant, the electronic communications of US citizens, effectively violating the ban on “unreasonable searches and seizures” inscribed in the Fourth Amendment of the US Constitution.
The Democrats provided the votes necessary to ensure the bill’s passage in August, following a high-pressure campaign by the White House that branded anyone opposed to the bill as “soft on terror.” The only token concession made by the Bush officials was a “sunset provision” that called for the law to expire in six months, on February 1, 2008. The Bush administration has waited less than two months to resume its campaign to make the law permanent and expand it.
“The threat from Al Qaeda is not going to expire in 135 days,” Bush said on Wednesday. Joined by Vice President Dick Cheney and National Intelligence Director Mike McConnell, he argued that retroactive immunity should be extended to telecommunications companies that may have helped the government conduct spying prior to January 2007 without a court order.
“It’s particularly important,” Bush said, “for Congress to provide meaningful liability protection to those companies now facing multibillion-dollar lawsuits only because they are believed to have assisted in efforts to defend our nation, following the 9/11 attacks.”
DNI McConnell testified before Congress on Thursday, reprising his role as the administration’s chief proponent of the legislation. Appearing before the House Intelligence Committee, he argued that even the public debate of these provisions had compromised their effectiveness in the “war on terror.” He said that Congressional examination of the laws governing FISA ran counter to established precedents, according to which “intelligence business is conducted in secret.”
“It’s conducted in secret for a reason,” McConnell said. “You compromise sources and methods, and what this debate has allowed those who wish us harm to do is to understand significantly more about how we were targeting their communications.”
Asked by Rep. Anna G. Eshoo (Democrat, California) whether he thought questioning by Congress of the Bush administration’s intelligence program would lead to the killing of Americans, he replied, “Yes, ma’am, I do.”
McConnell also repeated his claim that before passage of the latest bill the NSA had been forced in one case to wait 12 hours for a court-approved warrant to listen to phone conversations between Iraqi insurgents holding American soldiers hostage, because the communications were routed through US systems. In 2006, in fact, 2,176 of 2,181 wiretapping applications were approved by FISA judges, often in minutes after only an oral briefing.
When the “Protect America” bill was passed in late-night sessions before the August recess, 16 Democrats were among the 60 members in the Senate voting for the bill. In the House, 41 Democrats joined the 186 Republicans voting in favor. There is every reason to believe this time around that Congressional Democrats will provide the necessary votes to see that the domestic spying bill does not expire.
Senate Majority Leader Harry Reid commented on Bush’s speech, “The Democratic Congress will pass legislation to strengthen the Foreign Intelligence Surveillance Act, while also respecting the privacy of law-abiding Americans.” He added, “Neither the White House nor congressional Republicans should use this process to create a political wedge issue.” In other words, while making some protestations against the Bush administration’s assault on democratic rights, they are in agreement with the aims and methods of the “war on terror,” and fear above all being seen as weak on the issue.
The Democrats’ actions follow a familiar pattern. Before the vote in August, House Speaker Nancy Pelosi charged that the legislation “does violence to the Constitution of the United States.” While the rules of the House of Representatives stipulate that the majority party controls the schedule of votes, Pelosi did not exercise this right to delay a vote or kill it outright.
Within days of the measure’s passage, Pelosi sent a letter to Democrats Rep. John Conyers, chairman of the House Judiciary Committee, and Rep. Silvestre Reyes, chairman of the House Intelligence Committee, calling on them to come up with a new bill that “responds comprehensively to the administration’s proposal while addressing the many deficiencies” in the approved law.
While a Conyers representative commented at the time that the chairman “will want to move swiftly on introducing and moving the legislation in September,” no such initiative has been forthcoming.
In voting Wednesday on another issue of grave concern to civil liberties, a proposal that would have granted habeas corpus rights to detainees, including those at Guantánamo Bay, Cuba, failed in the Senate. Six Republicans joined with 50 Democrats in an effort to stop a Republican filibuster and bring the measure to a vote, four fewer than needed.
The proposal, backed by Patrick Leahy (Democrat, Vermont), chairman of the Senate Judiciary Committee, and Arlen Specter (Republican, Pennsylvania), would have amended the Military Commissions Act of 2006, which stripped detainees of their right to appeal their detention in federal court.
Leahy argued promoting the measure, “Casting aside the time-honored protection of habeas corpus make us more vulnerable as a nation because it leads us away from our core American values and calls into question our historic role as a defender of human rights around the world.”
The elimination of the habeas corpus rights of any non-citizen seized by the US government and imprisoned as an “unlawful enemy combatant” was the most sweeping change of the 2006 legislation. The act also authorized CIA interrogations of prisons using methods not permitted by the Geneva Conventions, retroactively legalizing the torture committed by CIA operatives from 2001 to 2005.
Passed in the lead-up to the 2006 mid-term elections, the White House and Congressional Republicans sought to smear any Democrats who voted against the bill as abettors of terrorism.
House speaker at the time, Dennis Hastert, denounced the Democrats’ slightly watered-down version of the bill, saying, “The Democratic plan would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives.” Within minutes of the signing of the bill, a Republican National Committee press release blared, “Democrats Would Let Terrorists Free.”
In the end, the Democrats provided the votes necessary to secure the legislation’s passage, signaling their agreement with the framework of the Bush administration’s “war on terror,” in which basic democratic rights and civil liberties must be sacrificed in an indefinite war in defense of US imperialist interests.
These views are at odds with those of the majority of Americans. Within weeks of the passage of the Military Commissions Act, the Democrats regained a majority in Congress, largely on the wake of growing opposition within the US population to the wars and occupations in Iraq and Afghanistan.