I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, February 17, 2006

Erasing the Cold War from history

In response to yesterday's impassioned George Will column attacking the "monarchical" powers claimed by George Bush, Bush supporter Captain Ed wrote a post in which he first pointed out that Will (of course) is no conservative, and then purported to respond to Will’s argument as follows:

This [Will's argument that FISA "was written to regulate wartime surveillance"] is patently untrue. FISA came into being to regulate peacetime surveillance by the federal government, as an antidote to Nixonian abuses of power that had nothing to do with the conduct of war (emphasis in original).

Initially, one must note that Captain Ed’s claim that "FISA came into being to regulate peacetime surveillance" -- a claim pervasive among Bush followers -- is just factually wrong. Indeed, it is so transparently wrong, and in such an obvious way, that it genuinely amazes that two months into the NSA scandal, someone like him, who pontificates on such matters on a daily basis, is so uninformed about the very law at the center of this scandal.

Section 1811 of FISA happens to be entitled "Authorization during time of war," and it expressly does what Captain Ed and so many other Bush followers falsely claim it does not do – namely, regulate eavesdropping during times of war:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

How can someone argue -- as so many Bush followers do -- that FISA was intended to regulate only peacetime surveillance when there is a clause in that law expressly regulating surveillance during times of war? On its face, FISA is a law that governs how the Executive can eavesdrop on Americans both in times of peace and in times of war.

Moreover, contrary to the notion that we were concerned about unchecked eavesdropping on Americans only during peacetime, it is worth pointing out that there was a war during the Nixon Administration. It was called the Vietnam War. Many of the documented eavesdropping abuses which led to FISA occurred during this war. As a country, we enacted FISA precisely because we wanted to make it a criminal offense for the Federal Government to eavsedrop on Americans without judicial oversight -- whether during peacetime or war. The law could not be any clearer about that. To claim that FISA grew out of concerns about eavesdropping abuses only during peacetime is inarguably false.

But beyond these self-evident factual errors in Captain Ed’s argument is a more fundamental and pervasive falsehood which is being peddled with increasing frequency to justify the Administration’s law-breaking. It is the notion that restraints on the Executive Branch generally, such as those mandated by FISA or ones prohibiting the incarceration of Americans without due process, are now obsolete because they were the by-product of some sort of peaceful, enemy-less, utopian era which no longer exists.

This world-view is staggering in its revisionism. FISA was enacted in 1978. I did not think there were many people, if there were any at all, who actually believe that 1978 was a time of "peace." Most people -- and I would have thought this was true particularly for "conservatives" -- tend to see that period as the height of a war which we call the "Cold War," where we faced an "Evil Empire" trying to achieve world domination in order to impose its tyrannical ideology. In fact, we spent the entire decade after the enactment of FISA engaged in a massive build-up of our military forces, and we even tried to find a way to build a space-based shield around our country in order to repel incoming missiles. Accordingly, how can it possibly be argued that Americans banned our Government from eavesdropping on us in secret only during times of peace?

Here is what Presidential candidate Ronald Reagan said on March 31, 1976, a mere two years before the enactment of FISA:

But there is one problem which must be solved or everything else is meaningless. I am speaking of the problem of our national security. Our nation is in danger, and the danger grows greater with each passing day. Like an echo from the past, the voice of Winston Churchill’s grandson was heard recently in Britain’s House of Commons warning that the spread of totalitarianism threatens the world once again and the democracies are wandering without aim.

And here is what President Reagan told the nation on March 23, 1983, when first announcing his "Star Wars" program:

The budget request that is now before the Congress has been trimmed to the limits of safety. Further deep cuts cannot be made without seriously endangering the security of the Nation. . . .

For 20 years the Soviet Union has been accumulating enormous military might. They didn't stop when their forces exceeded all requirements of a legitimate defensive capability. And they haven't stopped now. During the past decade and a half, the Soviets have built up a massive arsenal of new strategic nuclear weapons -- weapons that can strike directly at the United States. . . .

As the Soviets have increased their military power, they've been emboldened to extend that power. They're spreading their military influence in ways that can directly challenge our vital interests and those of our allies.

Some people may still ask: Would the Soviets ever use their formidable military power? Well, again, can we afford to believe they won't? There is Afghanistan. And in Poland, the Soviets denied the will of the people and in so doing demonstrated to the world how their military power could also be used to intimidate. ...

The Soviet Union is acquiring what can only be considered an offensive military force. They have continued to build far more intercontinental ballistic missiles than they could possible need simply to deter an attack. Their conventional forces are trained and equipped not so much to defend against an attack as they are to permit sudden, surprise offensives of their own.

That does not exactly sound like the harmonious time of peace which Captain Ed and others describe in trying to explain why FISA and similar restraints on executive power were intended to exist only in the time of peace in which they were created. In fact, people like Captain Ed love to regale us with heroic tales of how Ronald Reagan vanquished our enemy and won the war. How odd to hear from these same circles that 1978 was a time of harmonious safety and luxurious peace such that FISA was adopted only because we were not facing a deadly enemy.

This is an oft-overlooked point that is vitally important. The Soviet Union was an infinitely stronger, more formidable, more sophisticated enemy with far vaster resources than Al Qaeda could dream of possessing. And Communists, we were always told, employed their own deadly version of "sleeper cells" by systematically implanting foreign agents and even recruiting American citizens on U.S. soil to work on their behalf, including infiltrating the highest levels of the U.S. Government with their agents and sympathizers.

And yet, in the midst of all of these internal and external threats, the Congress enacted and the President signed into a law a statute permitting eavesdropping for foreign intelligence purposes only with judicial oversight. And more generally, during the four decades during which America fought the "Cold War" -- a war which was always depicted by both parties as posing an existential threat to our country -- no President ever seized, nor did Americans ever bequeath, the power to act contrary to Congressional laws and outside of the parameters of judicial "interference."

The single greatest myth which this Administration has peddled – and which a vocal and frightened minority have ingested – is that we are at some sort of unique place in our history where we face a threat greater and more formidable than any we faced previously, such that the principles which have guided our republic can and should be tossed aside as obsolete relics of a more peaceful and less threatening era. That is exactly what Captain Ed just argued as to why FISA can be disregarded as a quaint relic of the past.

There are numerous, glaring deficiencies in this argument. FISA was first enacted in 1978 but was amended and thereby re-affirmed in the immediate aftermath of 9/11, when the Administration requested changes to the law which Congress then made, causing the President to praise FISA this way on October 27, 2001:

The new law [amending FISA] 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 along time, we have been working under laws [FISA] written in the era of rotary telephones. Under the new law [which amends FISA], officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists. . . .

After 9/11, in the midst of our war against Islamic terrorism, the President himself argued that FISA is a modern and sufficient tool to enable us to conduct surveillance on the modern terrorist. Shouldn't Bush followers be precluded from claiming that FISA is obsolete and incapable of enabling surveillance of modern terrorist communications when the President said exactly the opposite?

And even if all of this were not true, we do not have a system of government (at least we never did before) where the President has the right to violate a law which he and his followers believe has become "obsolete" as a result of subsequent developments. Even if FISA were the obsolete by-product of a Golden Time of Peace, as the President’s apologists claim, it is still the "law," and the obsolescence of a law does not even remotely justify deliberate violations of it. No matter how many times one points that out, it never ceases to amaze that, at bottom, this scandal -- which has been burdened with all sorts of obfuscating legalisms and complexities -- arose from nothing more complicated than the fact this Administration believes it has the right to violate laws which it does not think are good laws.

But more important than all of those facts, what is far more fundamental is the defining American precept that a strong nation affirms its core principles most vigorously precisely when it faces external threats. We are a strong nation because we have adhered to the rule of law and our founding principles even as we defeated enemies far more formidable and threatening than a ragtag group of Islamic fanatics. Of all the radical changes which this Administration is attempting to bring about, the most threatening and corrupt is the notion that we need to fundamentally transform not just our system of government, but also our national character, all in the name of fighting Al Qaeda.

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