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.

Sunday, September 10, 2006

The President's FISA statements now are the opposite of what he said in October, 2001

(updated below)

The President this week urged passage of the Specter bill by arguing that FISA is an inadequate tool for eavesdropping on terrorists, and that we therefore need to legalize his warrantless surveillance program. This is his explanation as to why FISA is inadequate:

When FISA was passed in 1978, there was no widely accessible Internet, and almost all calls were made on fixed landlines. Since then, the nature of communications has changed, quite dramatically. The terrorists who want to harm America can now buy disposable cell phones, and open anonymous e-mail addresses. Our laws need to change to take these changes into account. If an al Qaeda commander or associate is calling into the United States, we need to know why they're calling. And Congress needs to pass legislation supporting this program. (Applause.)

This statement is completely misleading, because it depicts FISA as some sort of relic from 1978 that doesn't take into account all of this new, complicated communications technology. But FISA was amended in October, 2001 at the request of the President precisely in order to take that technology into account, and when it was, the President himself even used virtually the same language back then to praise the FISA amendments that he is now using to claim that FISA is obsolete. Here is what President Bush said once FISA was amended in October, 2001 via the Patriot Act:

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 that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones.

The flaw which President Bush is claiming exists with FISA today is exactly the flaw which he himself said -- using almost identical language -- was eliminated by the 2001 amendments to FISA which he requested. In his radio address the next weekend (on October 27, 2001), he emphasized the same point by praising the new FISA as follows:

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.

So, in October, 2001, the President said the problem with FISA is that it was an old law which -- to use his words -- was "written in the era of rotary telephones." Therefore, he argued, his power to eavesdrop needed to be expanded, and when it was, he said that "[u]nder the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists."

But now that he wants all limits on his eavesdropping power eliminated via the Specter bill, he is saying the exact opposite of what he said in October, 2001. Now he is pretending that those amendments never happened and is claiming that he has to work under a FISA law passed in 1978 which does not take into account that "the nature of communications has changed, quite dramatically." The dishonesty of that is so glaring and obvious but he knows that he can get away with it because going back and looking at what he said in October, 2001 and comparing it to what he is saying now is something the media simply will not do.

And just as a side note, the President's supporters have been insisting -- and his own Attorney General has been explicitly considering -- that the reporters and editors of The New York Times who revealed this illegal eavesdropping program should be imprisoned on the ground that they "blew the cover" on this program and thereby rendered it ineffective. If that's true, how could it also be the case that "Congress needs to pass legislation supporting this program"? Why would it be urgent that Congress pass a law legalizing a program which The New York Times destroyed when -- to use the President's words -- "details of the Terrorist Surveillance Program were leaked." When he urged the imprisonment of Jim Risen and Bill Keller (along with Dana Priest), Bill Bennett argued:

How do we know [the NSA story] damaged us? Well, it revealed the existence of the surveillance program - so people are going to stop making calls - since they are now aware of this - they're going to adjust their behavior . . . .

The President argues that "if an al Qaeda commander or associate is calling into the United States, we need to know why they're calling." Leaving aside the obvious point that eavesdropping on such conversations is already permissible under FISA, shouldn't it be the case, as Bennett claimed, that al Qaeda commanders no longer call into the U.S. ever since they "learned" from the New York Times that we are eavesdropping on their conversations?

The contradictions in the President's claims as to why he needs to be able to eavesdrop on Americans without judicial oversight are endless. The media cannot, I suppose, be expected to make all of those contradictions clear. For instance, perhaps it is too much to ask of the media to explain that Alberto Gonazles himself previously said -- contrary to the President's arguments -- that the "Terrorist Surveillance Program" does not expand the scope of conversations on which the President can eavesdrop, because the standard it uses is the same exact standard as FISA uses. As Gonzales said in a February 28, 2006 letter (.pdf) to Sen. Arlen Specter (written in order to enable Gonzales to retract numerous statements he made at the Judiciary Committee hearing):

Senator Feingold noted that, on September 10, 2002, then-Associate Deputy Attorney General David S. Kris testified before the Senate Judiciary Committee. Sen. Feingold quoted Mr. Kris' statement that "we cannot monitor anyone today whom we could not have monitored last year."

Given that Kris was comparing a time when the "Terrorist Surveillance Program" was in place (September, 2002) to a time when FISA was the only means of eavesdropping (September, 2001), his statement -- that "we cannot monitor anyone today whom we could not have monitored last year" -- would by necessity mean that the "TSP" does not expand the President's power to eavesdrop. And that is exactly what Gonzales said was the case:

In any event, [Mr. Kris'] statements are also accurate with respect to the President's Terrorist Surveillance Program, because the program involves the interception of communications only when there is probable cause ("reasonable grounds to believe") that at least one party to the communication is an agent of a foreign power (al Qaeda or an affiliated terrorist organization).

The President's own Attorney General has told the Senate that the "TSP" and FISA use exactly the same standard for eavesdropping -- i.e., that there is eavesdropping "only when there is probable cause" for believing that one party is part of a terrorist group. At least by that reasoning, FISA doesn't restrict the President's power to eavesdrop on terrorists. Instead, it merely requires that such eavesdropping be undertaken only with judicial oversight to prevent abuse. Even if that fundamental contradiction is too complex for journalists to consider, they ought to be able to digest and convey the simplest and most self-evident contradictions.

The fact that the President himself said that FISA -- once it was amended in October, 2001 -- was sufficient to enable him to eavesdrop on all modern forms of communication used by terrorists, only now to say the opposite, is not that difficult to explain. And it is equally easy, at least, to make clear that the difference between FISA and the so-called "Terrorist Surveillance Program" is not whether he has the power to eavesdrop on the communications of terrorists (he has that power under both), but instead is whether he can eavesdrop in secret and without judicial oversight.

UPDATE: Anonymous Liberal -- who originally was the first blogger to find and post the October, 2001 comments from Bush -- points out similar and additional contradictions embedded in Bush's FISA comments this week, including those which fall into the category A.L. labels as "pathologically dishonest."

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