The Senate just convened and will today take up three amendments and final passage of H.R. 6304, the FISA Amendments Act. A casual news consumer or reader of the feverblogs could be forgiven in thinking the Senate today was poised to legalize the Administration’s warrantless wiretapping of millions of Americans, the secret eavesdropping in which spies and law-enforcement thugs were listening to YOUR conversations.
For example, the San Francisco Chronicle today editorializes, “Warrantless wiretapping of Americans should outrage Congress into banning the practice. But, in a display of political expediency, the Senate is about to bless it, following a similar cave-in by the House last month.”
This misrepresents the debate. The surveillance programs being revised under the FISA Amendments Act are foreign surveillance programs, involving terrorist threats developing in foreign countries, with electronic communications (e-mails, phone calls) that may merely be routed through a U.S.-based nexus, or which involved communications beginning overseas coming into the United States (but not necessarily to a U.S. citizen).
So it is possible that the communications of American citizens were included in the presidentially authorized surveillance program, but it was NOT a program of widespread warrantless domestic wiretapping, as the opponents would have the public believe.
And let’s remember the context — not just in 2001, but today, as well. From the Senate Intelligence Committee’s report on S. 2248, the section, “The President’s program”:
In December 2005, the American people, and almost all of the Congress, learned for the first time that, shortly after September 11, 2001, President Bush had authorized the NSA to conduct surveillance activities in the United States to protect the country from future terrorist attacks. The NSA program was described by the Department of Justice in January 2006 as `an early warning system . . . to detect and prevent the next terrorist attack . . . a program with a military nature that requires speed and agility.’
After the attacks of September 11, 2001, Congress passed a joint resolution on September 14, 2001, declaring that the attacks `continue to pose an unusual and extraordinary threat’ to the country and calling on the President `to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any further acts of international terrorism against the United States . . . .’. Authorization for Use of Military Force, Pub. L. No. 107-40, section 2(a), 115 Stat. 224 (2001). The President also declared a national emergency on September 14, 2001, stating that there was `a continuing and immediate threat of further attacks on the United States.’ The intelligence community assessed in October 2001 that additional waves of al Qaeda attacks were imminent. This assessment was manifested in the mobilization of 35,000 reservists and National Guard troops for homeland defense; actions by the Attorney General putting all federal and state law enforcement officials and the U.S. business community on the `highest level of alert’; and the formal announcement of the FBI that the Government had reason to believe that new terrorist attacks might be launched in the United States over the next several days. It was during this period that the President first authorized the program.
Although the intelligence community assessed the threat to be imminent in October 2001, its concerns have persisted to the present day. The United Kingdom aviation plot of August 2006 and the bombing plots in Germany in 2007 are only two of the most recent examples of the continuing threat.
The NSA’s activities were reauthorized by the President on a periodic basis through January 2007. Over time, the program was modified to reflect new contingencies. Attorneys from the Office of Legal Counsel of the Department of Justice generated legal opinions throughout the duration of the program.
The critics of that surveillance seek to delegitimize the response to the terrorist threat against Americans. To them, the Administration and Congress were not justified in their response to the plotting of bombings and mass murders and attacks against the government and citizenry. Not just the programs, but the policies, were illegitimate, wrong.
One tactic in the effort to defeat these policies was the filing of civil lawsuits seeking billions of dollars against telecommunications companies that assisted in this surveillance, companies that followed legal orders from the federal government. Privacy absolutists like the ACLU and Electronic Frontier Foundation and anti-Administration activists went to the courts to achieve their policy ends.
In response, the legislation includes limited retroactive immunity for the telecoms, while allowing continued litigation against the government.
Today, the Senate is expected to reject three amendments that would kill the bill by attacking the immunity provisions — Senator Bond summarizes in this release — and then vote to pass the bill. (We note the legislation now includes specific protections for U.S. citizens overseas or whose communications might be targeted, so warrants are now required. Opponents don’t want those protections?)
Wild claims and angry denunciations of the police state will be the currency of the day, but passage of the bill acknowledges the real threats our country faces from terrorists, respects the value of private-sector cooperation, and adds further legal protections for U.S. citizens.
The alternative is degraded intelligence and a less safe country.
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