FISA 101

Are establishment journalists truly incapable of understanding the most basic facts about eavesdropping, or are they unwilling?

Published February 14, 2008 10:08PM (EST)

(updated below)

Because I had the flu yesterday and today, I have been subjected to far more television news than, under ordinary circumstances, I am able to bear. It never ceases to amaze how deeply confused and/or deeply dishonest reporters are about the topics they are assigned to cover.

FISA was not enacted in 1842. If we are "forced" to live under that law for a few weeks or even longer, we are not "going dark." We are not "more vulnerable" to the Terrorists Who Want to Kill Us. Even under FISA, the Government is fully able to eavesdrop on all of the Terrorists and suspected Terrorists their hearts desire.

FISA was enacted in 1978 and updated multiple times since then to accommodate all the modern technologies Terrorists use, including cell phones and computers. It was even amended in October, 2001, when a Congress that was even more compliant than it is now gave the President every change he wanted to that law.

No need to take my word for it. Here is what the Leader himself said about FISA -- the law he is now attempting (with a drooling, eager assist from our press corps) to depict as some dangerous relic from the obsolete era of telegraphs -- once it was amended in October, 2001 by the Congress, during the ceremony where he signed those amendments into law:

The changes, effective today, will help counter a threat like no other our Nation has ever faced. . . .

We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. . .

In his radio address the following week, this is the lavish praise the Commander-in-Chief heaped on the newly amended FISA law:

The bill I signed yesterday gives intelligence and law enforcement officials additional tools they need to hunt and capture and punish terrorists. Our enemies operate by highly sophisticated methods and technologies, using the latest means of communication and the new weapon of bioterrorism.

When earlier laws were written, some of these methods did not even exist. The new law recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations -- and also to detect them before they strike. . . .

Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

Every President until George Bush was able to defend the nation by engaging in surveillance under FISA. That even includes the Great and Powerful Warrior Ronald Reagan, who vanquished the incomparably nefarious Soviet Union while adhering to FISA. It was only George Bush who claimed that we would All Die unless FISA was modernized, and it was modernized -- repeatedly, to his satisfaction and at his direction.

FISA and the Protect America Act both equally allow eavesdropping on the Terrorists Who Want to Kill Us. The material difference is that FISA requires warrants for eavesdropping on Americans (after the fact, if necessary) while the Protect America Act allows the President to eavesdrop on any Americans without having any oversight at all. The difference does not relate to the ability to eavesdrop on the Terrorists but on the nature and level of oversight from that eavsdropping. Moreover, the FISA Court is and always has been a rubber-stamping tribunal that does not ever block any surveillance on any suspected Terrorists.

Thus, we're not all going to die under FISA. We're not "going dark." FISA is a modern law that was re-written at George Bush's direction and which he himself said allowed for full surveillance on all of the evil Terrorists and all of their complex, super-modern means of communications. None of this has anything to do with the Government's ability to listen in When Osama Calls. It is only about whether the nation's largest telecoms will have pending lawsuits, brought by their customers for breaking the law, dismissed by Congress. Is that really so hard to understand and explain?

UPDATE: One of the tortures I endured yesterday was watching the House hearing involving Roger Clemens and the trainer who claims to have injected him with steroids. The press could not have been any more riveted and was fully knowledgable of every relevant detail. Almost every House Committee member came to the hearing thoroughly prepared, grilled the witnesses with the expertise of an experienced litigator, and thundered about the grave seriousness -- and consequences -- of lying to Congress.

The drama was high, the gravity palpable, and the interest level intense. Ponder how much better our country would be if even a fraction of all of that were conjured up for acts of chronic lawbreaking and serial lying by our highest government officials, rather than our baseball stars.

On a not unreleated note, David Broder wrote his latest paean to "bipartisanship" today and made clear what he -- and most others -- mean by that (h/t Denning):

The voters' message is getting through, not only in settling the fights for the Republican and Democratic nominations but in changing the mind-set of Washington.

The clearest evidence of the change is what happened last week on the economic stimulus bill. A week ahead of their self-imposed deadline, the House and Senate, by overwhelming votes, sent to President Bush almost exactly the kind of relief measure he had sought for the staggering economy.

In Broderian Beltway World, when Democrats join the Republicans to give the Leader "exactly" what "he has sought," that is "bipartisanship." When they refuse to carry out the Leader's instructions, that's "partisan bickering."

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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