[Infowarrior] - NYT circulates fear-mongering claims on FISA debate

[Richard Forno]

NYT circulates fear-mongering claims on FISA debate

http://www.salon.com/opinion/greenwald/2008/06/10/lichtblau/

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."