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Congress Buying FISA

If you watch Congress closely, you might have noticed that they’ve been buying a lot of beachfront property in New Mexico over the last few years.

  • Emily Berman
February 15, 2008

If you watch Congress closely, you might have noticed that they’ve been buying a lot of beachfront property in New Mexico over the last few years.

America doesn’t torture, President Bush emphatically declared in 2005.  Except for those three people that we subjected to waterboarding

The 9/11 Commission was given all the information about the treatment of detainees that they requested.  Except those hours and hours of tapes of the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri that had been sitting in a safehouse in Thailand.

We’re not eliding our constitutional obligations to the detainees in Guantanamo.  Except that we have been denying them the long-established right to habeas corpus, the right to see evidence offered against them, the right to present evidence of their own to exonerate themselves. 

We’re not monitoring domestic communications without a warrant in violation of long-standing law.  Except for the five years between September 11th and the time the program was exposed by the New York Times.

In the past seven years, Congress has heard all of these proclamations by members of the Administration, each of them shown to be based on creative interpretations of the law or possible obstruction of justice.  And yet it continues to take the bait-hook, line, & sinker-either by taking no action at all or by enacting laws that simply codify the Administration’s flawed policies.

The latest in this long line of legislative travesties is the recently-approved Senate version of a bill to amend the Foreign Intelligence Surveillance Act (or FISA).  The debate over the measure was long, hard-fought, and characteristically full of outright misinformation.  Here are some examples:

  • (1)   “If Congress doesn’t pass a FISA bill by Saturday, FISA will expire”. Incorrect.  The Protect America Act, which eviscerated some of FISA’s civil liberties protections, expires Saturday.  FISA, which has served America’s intelligence community well for over 30 years, remains on the books.
  • (2)   “If telecommunications companies that cooperated with the administration’s warrantless wiretapping program are not extended retroactive immunity for any violations of the law they committed, they will not cooperate with intelligence operations in the future.” False. Without immunity, telecoms might not participate in illegal intelligence operations. Nor should they!  It is good public policy to discourage telecoms from cooperating with illegal surveillance. 
  • (3)   “Requiring the intelligence community to get authorization for surveillance activity from the Foreign Intelligence Surveillance Court (FISC) will impede government efforts to stop terrorists.”

Unsubstantiated.  From the time it was established in 1979 until 2006, the FISC rejected exactly 5 applications from the executive.  There’s no reason to think that it would not continue to approve valid surveillance requests if it is permitted to retain a role in the approval process.

Instead of recognizing these arguments for what they are-the politics of fear enlisted to further an agenda of unprecedented government secrecy and unaccountability-68 Senators have once again placed their trust in the administration by voting in favor of the bill.  They are trusting that the surveillance targets, which need not be approved by any independent judicial voice, are appropriate and are not likely to be Americans.  They are trusting that the information gleaned from such sweeping surveillance power is used properly.  They are trusting that the communications of Americans “inadvertently” captured in the course of surveillance operations are not retained or used improperly.

By trusting rather than verifying, they are abdicating their responsibility to protect America from excessive executive power.  By not standing up to this imperial presidency, they are saying that fearmongering works and that Congress is becoming irrelevant.

Showing a bit more savvy and resolve than the Senate, the House has thus far refused to fall prey to these same tactics and will let the Protect America Act expire on Saturday.  One can only hope that the House will continue to listen to the voices of those Americans who have grown tired of having their rights and the rights of their neighbors trampled by this administration.