Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well

by John Dean

Congressional Democrats are getting a lot of well-earned heat from rank-and-file members of their party, not to mention editorial writers and bloggers, for their lack of spine in refusing to reject the Bush/Cheney Administration's sweeping amendments to the Foreign Intelligence Surveillance Act (FISA). Just before Congress departed for its August recess, the Administration jammed through in five days - from start to finish -- the dubiously titled Protect America Act (PAA) of 2007, over the protest of the Democratic leadership. The only thing good about the PAA is that it is temporary - with a six month expiration date (although surveillance programs authorized under it can operate for up to one year.)

On her Democracy NOW daily program, Amy Goodman's (streaming video) interviewed Salon.com's law blogger, Glenn Greenwald, and the president of the National Lawyers Guild, Marjorie Cohn, about the PAA. The interview nicely sets forth what happened and its broad implications. Simply stated, Bush threatened to make a political issue of any effort by Congressional Democrats to protect the civil liberties of American. Bush surely succeeded beyond his most fervent hope in his intimidation of sixteen Democratic members in the Senate and forty-one Democratic members in the House, earning these members a place on "the roll of shame" in the blogosphere.

A Threat Greater Than That to Civil Liberties: Executive Aggrandizement

The Washington Post, the New York Times, and politically-diverse organizations ranging from the John Birch Society and the Cato Institute to the American Civil Liberties Union all agree that the PAA is a serious mistake, and threat to the civil liberties of Americans. They point out that the law ignores the Fourth Amendment while, at the same time, hiding its actual operations in national security secrecy. Indeed, Congress was not even certain about the full extent of what it has authorized because President Bush and Vice-President Cheney refused to reveal it.

It is not likely that law-abiding Americans will even know that the U.S. Government's intelligence gathering operations are listening in on their calls to and from foreign countries, or similarly scanning emails. For this reason, it is not to be expected that many Americans will care about what the Democratic Congress has given a Republican president who has proven himself insensitive to anyone's privacy other than his own.

There is, however, a threat in this new law even greater than its robbing Americans of their communications privacy, which commentators and critics have virtually ignored. This law is another bold and blatant move by Bush to enhance the powers of the Executive branch at the expense of its constitutional co-equals.

Congress was willing to give Bush the amendments to FISA that would make this law effective under current technology. The 1978 law did not account for the fact that modern digital communications between people outside the United States often is routed through the United States, yet the FISA Court said surveillance of such routed communications required a warrant. Nevertheless, Bush rejected the legislation proposed by the Democrats because it also contained checks on the use of surveillance powers.

This, of course, is consistent with Bush and Cheney's general drive to weaken or eliminate all checks and balances constraining the Executive. This drive was evidenced by countless laws enacted by the Republican-controlled Congresses during the first six years of the Administration, and in countless signing statements added by the President interpreting away any constraints on the Executive. Thus, when even the GOP Congresses required presidential compliance and reporting, they were thwarted.

The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.

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Fixing the Dangerously Deficient Albeit Quickly Sunsetting Protect America Act And Ignoring the White House's Requests For Even More Power

Though it is quite certain abuses of the surveillance powers under the Protect America Act will occur, they have not yet occurred. The failure to provide a check on such potential abuses, however, has already occurred. It represents the greatest failing of the Democratic Congress in acceding to the demands of Bush and Cheney. It is this failure that should be a paramount concern of the Congress when it next addresses this temporary law.

Speaker of the House Nancy Pelosi sent a letter to the chairmen of the House Judiciary Committee and the House Intelligence Committee, requesting they develop legislation "addressing the many deficiencies" of the temporary law as soon as Congress returns from its recess.

Even though the White House got everything it demanded from Congress, it is requesting even more. When signing the Protect America Act, Bush said, "When Congress returns in September, the Intelligence Committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director of National Intelligence Mike McConnell, including the important issues of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001."

Bush also wants legislative immunity for the American companies, and government officials (including himself), to protect them from criminal prosecution for violating the criminal provision of FISA. As readers will recall, before Congress caved and gave Bush power to conduct this surveillance, he - and telecommunication companies simply opted to do so illegally. Now, Bush will claim, with some justification, that because Congress has now made legal actions that were previously illegal, it should retroactively clear up this nasty problem facing all those who broke the law at his command.

If the Democrats fail to stand up to the bullying of this weak president, and ignore his demands for more unaccountability, they might as well start looking for another line of work. Not only are their fellow rank and file Democrats going to turn on them in 2008, but the overwhelming numbers of independents who assisted them in regaining power are going to desert them in droves.

At bottom, Democrats truly only need to add one fix to this dangerous law: meaningful accountability. They must do so, or face the consequences.

No one wants to deny the intelligence community all the tools it needs. But regardless of who sits in the Oval Office, no Congress should trust any president with unbridled powers of surveillance over Americans. It is not the way our system is supposed to work.
John W. Dean, a FindLaw columnist, is a former counsel to the president.
© 2007 FindLaw.com