[Infowarrior] - OpEd: Spies, Lies and FISA

[Richard Forno]

Spies, Lies and FISA

Published: October 14, 2007

http://www.nytimes.com/2007/10/14/opinion/14sun1.html

As Democratic lawmakers try to repair a deeply flawed bill on electronic
eavesdropping, the White House is pumping out the same fog of fear and
disinformation it used to push the bill through Congress this summer.
President Bush has been telling Americans that any change would deny the
government critical information, make it easier for terrorists to
infiltrate, expose state secrets, and make it harder ³to save American
lives.²

There is no truth to any of those claims. No matter how often Mr. Bush says
otherwise, there is also no disagreement from the Democrats about the need
to provide adequate tools to fight terrorists. The debate is over whether
this should be done constitutionally, or at the whim of the president.

The 1978 Foreign Intelligence Surveillance Act, or FISA, requires a warrant
to intercept international communications involving anyone in the United
States. A secret court has granted these warrants quickly nearly every time
it has been asked. After 9/11, the Patriot Act made it even easier to
conduct surveillance, especially in hot pursuit of terrorists.

But that was not good enough for the Bush team, which was determined to use
the nation¹s tragedy to grab ever more power for its vision of an imperial
presidency. Mr. Bush ignored the FISA law and ordered the National Security
Agency to intercept phone calls and e-mail between people abroad and people
in the United States without a warrant, as long as ³the target² was not in
this country.

The president did not announce his decision. He allowed a few lawmakers to
be briefed but withheld key documents. The special intelligence court was in
the dark until The Times disclosed the spying in December 2005.

Mr. Bush still refused to stop. He claimed that FISA was too limiting for
the Internet-speed war against terror. But he never explained those limits
and rebuffed lawmakers¹ offers to legally accommodate his concerns.

This year, the administration found an actual problem with FISA: It requires
a warrant to eavesdrop on communications between foreigners that go through
computers in the United States. It was a problem that did not exist in 1978,
and it had an easy fix. But Mr. Bush¹s lawyers tacked dangerous additions
onto a bill being rushed through Congress before the recess. When the smoke
cleared, Congress had fixed the real loophole, but also endorsed the idea of
spying without court approval. It gave legal cover to more than five years
of illegal spying.

Fortunately, the law is to expire in February, and some Democratic
legislators are trying to fix it. House members have drafted a bill, which
is a big improvement but still needs work. The Senate is working on its
bill, and we hope it will show the courage this time to restore the rule of
law to American surveillance programs.

There are some red lines, starting with the absolute need for court
supervision of any surveillance that can involve American citizens or others
in the United States. The bill passed in August allowed the administration
to inform the FISA court about its methods and then issue blanket demands
for data to communications companies without any further court approval or
review.

The House bill would permit the government to conduct surveillance for 45
days before submitting it to court review and approval. (Mr. Bush is wrong
when he says the bill would slow down intelligence gathering.) After that,
ideally, the law would require a real warrant. If Congress will not do that,
at a minimum it must require spying programs to undergo periodic audits by
the court and Congress. The administration wants no reviews.

Mr. Bush and his team say they have safeguards to protect civil liberties,
meaning surveillance will be reviewed by the attorney general, the director
of national intelligence and the inspectors general of the Justice
Department and the Central Intelligence Agency. There are two enormous flaws
in that. The Constitution is based on the rule of law, not individuals;
giving such power to any president would be un-American. And this one long
ago showed he cannot be trusted.

Last week, The Times reported that the C.I.A. director, Gen. Michael V.
Hayden, is investigating the office of his agency¹s inspector general after
it inquired into policies on detention and interrogation. This improper,
perhaps illegal investigation sends a clear message of intimidation. We also
know that the F.B.I. has abused expanded powers it was granted after 9/11
and that the former attorney general, Alberto Gonzales, systematically
covered up the president¹s actions with deliberately misleading testimony.

Mr. Bush says the law should give immunity to communications companies that
gave data to the government over the last five years without a court order.
He says they should not be punished for helping to protect America, but what
Mr. Bush really wants is to avoid lawsuits that could uncover the extent of
the illegal spying he authorized after 9/11.

It may be possible to shield these companies from liability, since the
government lied to them about the legality of its requests. But the law
should allow suits aimed at forcing disclosure of Mr. Bush¹s actions. It
should also require a full accounting to Congress of all surveillance
conducted since 9/11. And it should have an expiration date, which the White
House does not want.

Ever since 9/11, we have watched Republican lawmakers help Mr. Bush shred
the Constitution in the name of fighting terrorism. We have seen Democrats
acquiesce or retreat in fear. It is time for that to stop.