Last August, panicked at the prospect of an imminent terrorist attack that could be averted only by granting the executive branch new surveillance powers, Congress passed the Protect America Act. With the law scheduled to expire this month, the Bush administration is trying to scare Congress into making the powers permanent.
The alleged crisis is an artificial one created by a president who waited until last summer to seek congressional approval for the illegal surveillance his administration conducted after September 11, 2001. President Bush took his time, and so should Congress.
After the New York Times revealed, in December 2005, that the National Security Agency had been eavesdropping on international communications involving people in the United States without the warrants required by the Foreign Intelligence Surveillance Act (FISA), the Bush administration insisted the program was perfectly legal. The Justice Department claimed Congress (apparently without realizing it) had implicitly amended FISA when it authorized using military force against al Qaeda and its Taliban allies in Afghanistan.
At the same time, then-Attorney General Alberto Gonzales said the White House had not asked Congress to change FISA because Congress probably would have said no. That explanation was inconsistent not only with the claim Congress already had legalized the surveillance program but also with the fact that Congress had amended FISA in other ways by passing the Patriot Act in October 2001. If any doubt remained that Congress would have been receptive to the administration’s request for further FISA amendments, it was dispelled by the hasty passage of the Protect America Act.
Even at this late date, it’s not clear why FISA needs to be amended. The administration said it violated the law for years because it could not conduct the surveillance necessary to prevent terrorist attacks while complying with FISA’s warrant requirements. But in January 2007, Mr. Gonzales suddenly announced the irresolvable conflict somehow had been resolved and all anti-terrorist surveillance would now be conducted in compliance with FISA.
A few months later, what had been impossible and then briefly possible became impossible again, supposedly because of a secret ruling by the Foreign Intelligence Surveillance Court. The administration said a judge on the court interpreted FISA as requiring a warrant for surveillance of foreign-to-foreign communications that happen to pass through U.S. wires.
“International communications are on a wire, so all of a sudden we were in a position because of the wording in the law that we had to have a warrant to do that,” Director of National Intelligence Michael McConnell told the El Pas Times in August. “If it were wireless, we would not be required to get a warrant. … My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire.”
It’s hard to see how a judge could have interpreted FISA this way. But even if one did, the administration has never explained why this decision (which it inexplicably did not appeal) required Congress to authorize warrantless surveillance of communications that not only traverse U.S. wires but involve people in the United States.
Instead the administration has obscured the breadth of the powers granted by the Protect America Act. In the El Pas Times interview, Mr. McConnell falsely asserted that the communications at issue are “all foreign to foreign.”
The administration has contradicted itself even on the question of how urgently needed the FISA changes are. Last summer they were so crucial to national security that Mr. McConnell claimed pausing to debate the issue meant “some Americans are going to die.” More recently, Mr. Bush has threatened to let these absolutely essential powers lapse by vetoing extension bills that do not meet his specifications.
An administration that cannot tell a consistent story in public about why it needs new extrajudicial surveillance powers cannot be trusted to exercise those powers in secret.
Jacob Sullum is a nationally syndicated columnist.