NYT circulates fear-mongering claims on FISA debate

The White House and Congress prepare to tell Americans: If you want to stay safe, you must give the president the power to spy on you without warrants, and immunize telecoms from the consequences of lawbreaking.

Published June 10, 2008 12:15PM (EDT)

(updated below)

The New York Times' Eric Lichtblau has a long, prominent article today on the pending debate over FISA and telecom amnesty -- headlined: "Return to Old Spy Rules Is Seen as Deadline Nears" -- that features (and endorses) virtually every blatant falsehood that has distorted these spying issues from the beginning, and which is built on every shoddy journalistic practice that has made clear debate over these issues almost impossible. The article strongly suggests that a so-called "compromise" is imminent, a "compromise" which will deliver to the President virtually everything he seeks in the way of new warrantless eavesdropping powers and telecom amnesty.

One paragraph after the next in Lichtblau's article features shrill warnings, mostly from unnamed "officials," about all the scary things that will happen if Congressional Democrats do not quickly pass a new FISA bill that is similar to the Rockefeller/Cheney Senate bill and that is agreeable to the President. If a "compromise" isn't reached, reports the article, then we'll all have to live under the so-called "old" FISA law -- meaning the law used by the U.S. to defend itself from 1978 until August, 2007 and then again from February, 2008 until the present. Moreover, the one-year surveillance orders obtained last August under the now-expired Protect America Act are set to expire in August, 2008. We learn from Lichtblau's article that this would be so very dangerous because:

  • expiration of the one-year PAA orders in August would create "a situation that some officials predict could leave worrisome gaps in intelligence";
  • if no deal is reached, then "'We'll start losing intelligence capabilities,' Senator Christopher S. Bond of Missouri said";
  • "government and Congressional officials said in interviews that they saw [reversion to FISA] as a dangerous step backward" because "government lawyers, analysts and linguists would once again have to prepare individual warrants, potentially thousands of them, for surveillance of terrorism targets overseas."
  • Scarier still: "Telecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said."
  • Without any explanation as to why, Lichtblau grants anonymity to an administration official to oh-so-bravely-and-valuably spout the administration line: "A senior intelligence official, speaking on condition of anonymity, said the administration was concerned that reverting to the older standards and requiring individual warrants for each wiretap would create a severe gap in overseas intelligence by raising the bar for foreign surveillance collection."
  • "Attorney General Michael B. Mukasey has described the idea of reverting to the older standards of foreign surveillance as 'unthinkable.'"
  • As always, pitifully frightened Congressional Democrats feed these claims: "'Until August, were O.K.,' said one senior Democratic Congressional aide involved in the negotiations. "After August, we're not O.K."

And on and on and on. In short, and as always, terrible things will befall us -- scary, "unthinkable," "severe," "dangerous" things -- unless we all harmoniously comply with the President's demands for the power to spy on our communications without warrants and without oversight, and unless we immunize telecoms that broke the law. Only if we agree to those things can we be nice and protected and safe. They don't even bother to dress up that message any longer in subtle tones.

* * * * *

The most basic facts governing the surveillance debate prove how false and absurd are these fear-mongering claims that Lichtblau mindlessly passes on, and which he allows to shape his narrative without any real comment:

(1) All of the scare-mongering claims the article touts are based almost exclusively upon one small, narrow, relatively uncontroversial problem ostensibly plaguing the current FISA law: namely, the requirement (allegedly imposed by a FISA court last year) that warrants be required for intercepting purely foreign-to-foreign communications when such communications are routed through U.S. networks. Virtually every quote in Lichtblau's article warning of the "vulnerabilities" we will face is grounded in claims about what will happen if warrants continue to be required for foreign-to-foreign communications (the cliched situation where "someone in Afghanistan calls someone in Iraq" and the call is routed through a U.S. network).

But that issue has absolutely nothing whatsoever to do with the vast new eavesdropping powers the Rockefeller Senate bill vests in the President to spy on Americans inside the U.S., and those issues have even less to do with -- that is to say, nothing at all to do with -- the issue of telecom amnesty. But Lichtblau writes one paragraph after the next falsely linking (a) the risks from requiring warrants for foreign-to-foreign calls to (b) the need to pass a bill that would allow the President to spy on Americans inside the U.S. without warrants and which would immunize telecoms. Those two things have nothing to do with one another. The scary things that supposedly come from (a) are simply being exploited in order to justify the completely unrelated new powers of (b), and Lichtblau's article conflates those two unrelated matters almost entirely.

Put another way, even if it's "urgent" that FISA be amended to exempt foreign-to-foreign communications from its warrant requirements, that is irrelevant to the debate over whether the President should be able to eavesdrop on Americans inside the U.S., and even less relevant to whether telecoms should receive amnesty for their lawbreaking. Those are the issues being debated, not whether "foreign-to-foreign" communications require warrants. But, as always, proponents of more unchecked government power exploit the dangers they claim to be so concerned about in order to seize totally unrelated new powers, and Lichtblau's article does nothing to debunk that tactic and does much to amplify it.

(2) The whole issue of "foreign-to-foreign" communications is a complete red herring. It's irrelevant in considering whether to enact the Rockefeller/Cheney Senate bill or anything close to it. Even the most stalwart civil libertarians in the Congress -- such as Russ Feingold and Chris Dodd -- have been willing from the start to amend FISA to exclude foreign-to-foreign communications from the warrant requirements.

If the President agreed to sign it, Congress could pass a law amending FISA in one day to fix that particular "problem," and then virtually every scary threat Lichtblau's article describes would instantaneously disappear. All of the supposed fears and dangers Lichtblau's article cites are an absolute sideshow because virtually every member of Congress is willing right this minute to pass a law to amend FISA to eliminate the cause of those supposed dangers -- i.e., the requirement that warrants be obtained to eavesdrop on foreign-to-foreign calls. Pointing to the "dangers" from that requirement in order to justify passing the Rockefeller/Cheney bill is exactly the same as pointing to the threat posed by Al Qaeda in order to justify invading Iraq; one has nothing to do with the other.

(3) There's one reason and one reason only why the Protect America Act expired last February and why the orders obtained under it are set to expire in August. It's because the President and Congressional Republicans blocked an extension of the PAA because the President said he would veto any FISA amendment unless telecom amnesty was attached to it (Lichtblau notes: "Democrats have offered temporary extensions in the surveillance law, but the White House has resisted that idea"). Thus, to the extent that the August expiration of PAA orders will create -- all together now -- "critical intelligence gaps," that is due exclusively to the refusal of the White House to close those "gaps" unless the telecom industry is first immunized from the consequences of its lawbreaking.

(4) If any of the fear-mongering claims in Lichtblau's article about expiration of the PAA surveillance orders were even remotely true -- as opposed to using them to obtain wholly unrelated new powers and telecom immunity -- then the easiest, most complete fix imaginable would be pursued: namely, simply extend the existing PAA orders by 6 or 9 months so that they don't expire in August. If the August expiration of the PAA orders really were of such concern, then that's all that needs to be done and the "dangers" would all be immediately averted.

The reason the President, the GOP and the Rockefeller-led Senate Democrats won't do that is because they don't want to fix the problem of the expiring PAA orders. If they did want to, they could fix that problem in one day by extending their deadline. They want those PAA orders to expire so that they can exploit their looming expiration to scare the country -- and, most of all, bully Congressional Democrats -- into passing the Rockefeller/Cheney Senate FISA bill.

(5) Referring to the pre-PAA FISA law as "the old law" -- as though it's some creaky, primitive, dangerous relic from the distant past -- is completely misleading. We lived under the FISA law for five full years after 9/11. During those five years, the Bush administration never even wanted it amended. FISA has been repeatedly amended in order to modernize it. The only arguable problem with FISA -- that it has allegedly been interpreted by a FISA court to apply to foreign-to-foreign calls -- is one that can be fixed in a day. The whole premise of the scare-mongering claims permeating Lichtblau's article is not that the FISA law is obsolete, but rather, that the key instrument imposed by the Founders to preserve basic liberty -- warrants -- is something that we must now abolish if we are to stay safe from the Terrorists.

(6) Lichtblau's article inaccurately describes the current GOP "compromise" bill with regard to telecom amnesty. It does not, as the article claims, "allow the FISA court to review the administration’s requests and determine by a 'preponderance of the evidence' whether the requests [from the Government to the telecoms to allow spying] were valid." Rather, the "compromise" bill simply says that if the telecoms can show that the Government requested that telecoms allow warrantless eavesdropping and represented that such warrantless spying was legal -- and we already know that that happened -- then the FISA court is required to immunize the telecoms.

The GOP "compromise" does not entail, in any way, any judicial consideration of whether the spying program in which the telecoms participated was legal, nor does it require consideration of whether the telecoms broke the law. The GOP "compromise" bill is nothing more than guaranteed, absolute immunity for the telecoms delivered in the form of a pre-scripted judicial process.

* * * * *

But this is what makes the Democrats in Congress so contemptible. As always, they claim that they are preparing to comply with the President's demands because they are afraid of the political costs of not doing so:

As hard as the White House has pushed, Democrats may have even more at stake. They acknowledge not wanting to risk reaching their national convention in Denver in August without a deal, lest that create an opening for the Republicans and Senator John McCain, their presumptive presidential nominee, to portray themselves as tougher on national security -- a tried-and-true attack method in the past -- just as the Democrats are nominating Senator Barack Obama.

That is the hallmark of the Democratic Party leadership: they are afraid of looking weak, and the way they try to solve that problem is by being guided by their fears and allowing themselves to be bullied into complying with the President's instructions. They actually still think that being bullied and always being afraid to take a stand will make them look strong. They have yet to figure out that it is that craven behavior which makes them look weak, and appropriately so, since it is weak.

But even that ostensible political fear makes no sense whatsoever. Democrats control the agenda in Congress. They determine what bills are voted on. All they have to do is force a House and Senate vote on a bill that does two simple things: (a) exempt foreign-to-foreign calls from FISA's warrant requirements and (b) extend the PAA surveillance orders by 6 or 9 months. When the GOP filibusters that bill, or when George Bush vetoes it, then that will obviously preclude the GOP from using the expiration of those PAA orders as a club to beat Democrats, since it will be as clear as day -- so clear that even our national press corps can understand it -- that it was the President and the GOP, not Congressional Democrats, which caused those orders to expire.

Whatever else happens, the excuse that will be offered by Democrats -- that they were pressured and forced into accepting this "compromise" because they would be politically harmed if the PAA orders expired in August -- is patently false. They could easily obviate that weapon by simply offering a bill to extend the orders. When they don't do that, and instead agree to a "compromise" that gives the President virtually everything he has been demanding, it will not be because they were coerced or pressured into doing so, but rather, because they, too, favor warrantless eavesdropping and telecom amnesty.

UPDATE: Numerous privacy and civil liberties organizations -- including the ACLU and EFF -- today issued a joint letter (.pdf) strongly condemning the so-called GOP "compromise" FISA bill, making clear that it "is far from a compromise. Its chief provisions are not significantly different from those contained in the bill passed by the Senate in February of this year." Specifically, the "compromise" bill "unreasonably and unnecessarily authorizes broad surveillance of Americans' international communications without meaningful Fourth Amendment protections" and "would use the secret FISA court to rubber stamp a grant of immunity to telecommunications companies."

By Glenn Greenwald

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