"To the Point" - August 7, 2007 - "President Bush, the Democrats, and the Fear of Terror"
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Host: Warren Olney
Guests: Charlie Savage, Pulitzer Prize winning reporter for the Boston Globe; Jack Balkin, professor of constitutional law at Yale Law School, and editor of the legal blog, “Balkinization”; Robert Turner, associate director of the Center for National Security Law at the University of Virginia and former member of the Reagan administration; Mark Rotenberg, executive director of the Electronic Privacy Information Center (EPIC); and Kevin Drum of the Washington Monthly’s “Political Animal” blog.
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Warren Olney: President Bush may be a struggling lame duck, but Democrats can still be outmaneuvered if they think they’ll be called “soft on terrorism.” As Congress was leaving town, both houses gave Mr. Bush the wiretapping authority he wanted, despite opposition from the Democratic leadership. The White House denies it’s a broad expansion of the president’s powers. House Speaker Pelosi calls it “unacceptable.” Other Democrats and some libertarians say the new majority buckled under intimidation and pressure. We’ll look at the new law and the politics that led to its passage. … “Everybody was afraid they might be branded as ‘soft on terrorism.’” That’s how Senator Barack Obama explained that both Houses of Congress approved electronic surveillance legislation demanded by President Bush, even though it was opposed by the leaders of the new Democratic majority. Senator Obama was among those who voted against it. Some Democrats say they were outmaneuvered; others accuse the White House of bad faith. Charlie Savage has been following the story. Charlie, we’re talking about the “Protect America Act of 2007” which passed just before the Congress adjourned for August. Tell us about the circumstances under which the legislation was introduced, voted on, and then signed by President Bush.
Charlie Savage: Those of us who were following Congress were vaguely aware that the administration, back in the spring, had proposed a bill that would “update” FISA, but no one was really talking about it – FISA being the Foreign Intelligence Surveillance Act of 1978 which requires the government to have warrants when spying on Americans for the purpose of national security. No one was really talking about this legislation until last week when suddenly, seemingly out of nowhere, it became an enormous crisis and this bill had to be passed before Congress left for its annual August recess this past weekend. It swallowed up the main attention from what Congress was trying to do at the end of the week and we observers of this system weren’t even able to see much of the legislation. The bills were not being introduced. There was one Republican bill out there. The Democrats bill wasn’t even ready to be read. It was all being negotiated behind closed doors. And then suddenly on a Friday night the Senate approved a largely White House-written version and just before midnight on Saturday the House did the same. Suddenly we had a major new surveillance law.
WO: Who said it was a crisis that had to be dealt with before the Congress recessed?
CS: This was a White House driven legislative strategy. In that sense it echoes some other post-9/11 politics that we’ve seen. We saw in 2002 the Iraq War authorization, but no one was talking about the need to authorize a war until September of 2002, just before Congress was going to go home again and suddenly they had to do it then – there was no time to wait. We saw it again in the fall of 2006 with the Military Commissions Act which, of course, does much more than just set up military commissions. It gives the president broad new powers over detainees. It was hurriedly introduced just before Congress just as it was about to leave town with the message that it had to be passed immediately, there was no time to wait. And Congress did so.
WO: You said that there had been negotiations going on and you were vaguely aware of them. What does the “Protect America Act of 2007” do that the law didn’t do before?
CS: Well, there’s a controversial component and a less controversial component. The less controversial component is that it makes clear that if there are two people overseas who are talking to each other but their conversation or their email routes through servers on American soil before going abroad again, if the government wants to wiretap the servers and switches on US soil it doesn’t need a warrant to do so with purely foreign communications. And that’s just a fix to a technology issue that arose because back when the law was written [in 1978] there weren’t the fiber optic networks that brought purely foreign conversations across US soil. The more controversial thing that it does it that it also frees the government, while it’s sitting on those switches, to listen to calls that aren’t purely foreign but that have a foreigner on one end of the line and an American on the other. The government is now allowed under this law to surveil those international communications involving Americans so long as the government certifies to itself that its target is primarily the overseas person.
WO: So the target is the overseas person and then as a consequence of listening in on that person’s conversation they hear the conversation of an American citizen (or email or whatever the means of communication).
CS: Correct. There’s no need for court oversight or court permission to do that now.
WO: And there was before?
CS: There was when the communications were being intercepted on US soil before.
WO: Can the government hold on to that information involving the US citizen who’s not a target?
CS: Well, there are procedures which are called “minimization” which have long been part of this kind of national security intelligence and are part of this as well. What it says is, if the government is targeting the foreign person (which can be an American citizen who just has to be located physically abroad) and they pick up another American, an independent American’s private information, they are supposed to delete the identifying information about the American from their files. But they are allowed make an exemption from that and save that private information if they certify to themselves that, whatever that information is, it might have some foreign intelligence value or might be evidence of a crime.
WO: You’ve used the phrase “to themselves” a couple of times. Who are “themselves”?
CS: This would be the attorney general and the national intelligence director and, more pragmatically, it would be the officials at the National Security Agency at Fort Mead, Maryland, who are the ones monitoring these communications.
WO: And were they added at the last minute because of the concerns over the controversies involving the attorney general?
CS: Well, obviously the NSA officials who are doing to be actually carrying out the monitoring would always have been involved because they’re the ones doing it. What you’re referring to is the administration had proposed that Alberto Gonzales, the attorney general, would be the sole authority who would decide whether or not various surveillance was acceptable and being carried out in the right way. Congress said, “Well, let’s have a second person who’s not Alberto Gonzales at least in statute in charge of making sure procedures are followed correctly.”
WO: So the basic idea here, as I understand it, is that previously you needed a search warrant in order to wiretap the phone of an innocent American in the US. Now you don’t?
CS: Well, it’s not quite that simple. If you’re targeting a foreigner who’s talking to an American, now you absolutely do not need a warrant. But if you are targeting the American, then you do need a warrant. The catch is, what do you mean by “targeting”? Or what if the government is interested in both of them? Can they just say, well, we’re interested in the foreigner so that’s good enough to evade these warrant requirements? It opens the door to that kind of potential game rigging. Which is one of the reasons why some of the Democrats, at least, are upset that there is so little oversight into this law. For instance, an earlier version of the bill, a rival bill, would have required the executive branch to tell Congress how many Americans’ phone calls were “inadvertently” picked up per period, and so forth. And all those oversight provisions were dropped from the final legislation.
WO: Again, a complex piece of work by Charlie Savage, legal affairs reporter for the Boston Globe, and winner of the Pulitzer Prize. His book, “Takeover: The return of the Imperial Presidency and the Subversion of American Democracy,” is going to be released next month.
Jack Balkin is professor of constitutional law at Yale Law School and he runs the legal blog, “Balkinization.” Jack Balkin, you have been very critical of the Democrats over this piece of legislation. You’ve called them the “party of fear,” “the party without a spine.” Why?
Jack Balkin: Well, they’re not the party of fear. The other party is the party of fear! They’re the party without a spine! The larger issue that Charlie describes is that we are moving toward a system in which government – for all sorts of reasons – has to do more surveillance and collect more information. It’s what I call a “national surveillance state” which succeeds a national security state. And really the issue is what kind we’ll have. Will we have a national surveillance state that uses only information it needs? Does it collect information it doesn’t need? Will it have a proliferation of secret laws? Or will it have more oversight? That’s the choice. Both parties are going to be involved in doing it. And so far the Democratic Party does not seem to be interested in protecting the rights of American citizens. It seems more worried about being accused of being “soft on terrorism.”
WO: You say the national surveillance state will succeed the national security state. Do we have any choice about that? Or is that simply a function…
JB: No. That’s inevitable. The growth of the internet, changes in technology, changes in the way war is conducted and also the Americans’ demand for various kinds of social services means that one of the things the government is going to do in the future is collect and analyze information and purchase lots of information from private parties. These are just features of governance. They’ve been with us for some time now and are becoming even more important in the future. So the most important thing to do is put in structures of oversight, rule of law protections, upgrade civil liberties protections, use technology and various auditing procedures to make sure that arbitrary uses of power don’t become central to what government does. This is really not just about September 11, although the rhetoric is about September 11. It’s really about the way in which government does its business. And we happen to be falling into a situation where more and more of what government does is secret and not subject to accountability. That’s really the issue. And in that, both parties are going to have to play a role. So far, neither party is stepping up and doing what’s necessary to make sure the government does what it needs to do in a way that protects our liberties.
WO: Speaker Pelosi and other Democrats have said – they who are opposed to the bill in the first place – that it has a year-long sunset date on it, that it can be taken up again within six months, and that they’ll do it even sooner than that. Do you think there’s a chance, then, that they can fix the problems you see in this before they cause any problems?
JB: Well. As you said, a surveillance program that began with this new statute will extend not just simply for six months but until the very end of the Bush administration. And so if one is surveillance of American citizens under the guise of surveilling people outside the US – Charlie pointed out and I want to emphasize that the surveillance of those outside the US does not have to be because of terrorism or even criminal activity, it simply has to be of some interest to foreign intelligence gathering. If one is worried about that, then the damage will be done [already] for many folks. And, I should say, there is nothing that the president and his allies have said now that they won’t say again in six months. They’ll make the same claim – that, unless you do exactly what they tell you to do, basically our cities will be bombed and we’ll be destroyed and it’ll be unsafe to live in Washington, DC. The same rhetoric will be used. The real question is, in six months will the Democratic Party or indeed Libertarians and people who love freedom in the Republican Party, will these people be willing to stand up to the president then? So far it doesn’t look like they will.
WO: Robert Turner is associate director of the Center for National Security Law at the University of Virginia. He was counsel to the president’s Intelligence Oversight Board during the Reagan administration – the dark ages, I suppose in terms of technology of the sort we’re talking about… Professor Turner, do you share the concerns of Jack Balkin about the development of the national surveillance state and the need for more oversight and for shedding some light, at least, on these kinds of laws that risk the violation of privacy, rather than doing everything behind closed doors?
Robert Turner: I don’t in this case. He portrays this as some sort of last minute scheme that was not really an emergency. What happened, according to press accounts, is that the judge in the FISA court declared that emails going from Osama bin Laden in Pakistan to another terrorist in Afghanistan – if they passed through the US through some internet circuit, they then were protected by the FISA statute. A primary purpose of this bill is to make it clear that’s not true, that when foreigners communicate with foreigners, the fact that their communication happens to pass through the US does not make it subject to a requirement for a FISA warrant. So there really was a problem. It was an emergency. And, as I look at it, this is not much different from domestic law. If I buy a lamp on eBay and unbeknownst to me it’s being sold by a Mafia figure for whom the FBI has a wiretap warrant, they can intercept my conversation with him saying, “Where do I sent the money?” I become collateral damage. In the same way, in a time of authorized war, we know we have terrorists who want to kill Americans. The idea that when they communicate with somebody in this country it is unreasonable for our government to listen in and make sure they’re not saying, “Go to point X and pick up the bomb to deliver to the Lincoln Tunnel,” is absurd. The Supreme Court has held in many national security and safety situations that neither probable cause nor individualized suspicion is required for a search or seizure. Classic case: Every time any of us goes to the airport we get our baggage and our persons searched. That’s a 4th Amendment search and the Court held that, because of a threat of a high jacked airliner or an exploded airliner is so great, the search is per se reasonable. I testified twice last year before the full Senate Judiciary Committee. Not one senator of either party said that this TSP – this terrorist surveillance program searches – were “unreasonable,” which is a Constitutional standard and no one said they should be disconnected. So I just don’t see the problem here.
WO: …Mark Rotenberg is executive director of the Electronic Privacy Information Center (EPIC), a privacy advocacy organization based in Washington. …Mark Rotenberg, can you be a little more detailed than we have been so far about exactly what the risks to privacy are in this new legislation as seen by people who are opposed to it?
Mark Rotenberg: I think Charlie did a good job at the beginning of the program describing the significant that the changes to the amendments to the FISA will make. The key point is that it is now the case that the director of national intelligence and the attorney general can simply believe that they are targeting a person outside of the US for a communication intercept -- which will take place within the US, by the way, and will be targeted toward a US corporation, and that intercept will go forward without any judicial review. It means that the communications traffic of Americans, including the traffic that might be to the various call centers throughout the world when people are checking on their airline reservations or hotel reservations or vacation plans – all of that becomes subject to this new authority. It’s a very dramatic change in wiretap law. I really have to disagree with some of the points Professor Turner made earlier because he knows, of course, that in traditional wiretap law for criminal investigations there is always a predicate that the target was suspected of some criminal activity that justified the wiretap. And even that list of predicate crimes was pretty narrow. We’re now at the point where we allow a wireless wiretap by simply saying we think an American is talking with someone who might be outside of the US. It is very, very far from where the Congress was originally on authorizing electronic surveillance.
WO: And what abuses are you concerned about?
MR: I think the history of abuse in this area, not only in the US but in other countries, is very well established. The key problem, of course, is that once you create this kind of surveillance authority without some independent oversight – which is the role the courts have always played in the US and even the FISA court in the special circumstances of the FISA wiretap – you open the door to the use of the authority for a lot of unrelated purposes. And that’s even suggested in the amendments that were passed by Congress. Charlie mentioned the minimization procedures which do kick in, in the exception that the surveillance reveals some criminal activity of an American that’s now uncovered as a result of the wiretap directed toward the foreign party. So we now have the legal basis for what might otherwise be described as a “fishing expedition.” You target the foreign party, you get as much communications traffic on Americans as you can, and you go back through it looking for indications of criminal activity whether or not you’re aware that any of that activity existed in fact prior to when the surveillance was authorized. It’s really a very far-reaching change.
WO: Robert Turner..,why shouldn’t we be concerned about this? Is it of authorizing a fishing expedition with no oversight?
RT: This involves no change other than technology from the traditional American practice. We need to remember that under the Constitution the business of intelligence – to use the language that John Jay used in Federalist 64 – was “confided to the president to be managed as prudence might suggest.” Congress had never tried to oversee intelligence collection prior to FISA, the courts had never got into this business. Henry Clay, as a member of the House of Representatives in 1818, said it would be improper for Congress to inquire into how the president spent money for foreign intelligence collection. In ’68, when Congress passed the Title III of the crime control and safe streets act, it specifically provided that nothing in that title would limit the independent, constitutional power of the president to collect foreign intelligence. I worked in the Senate when we passed FISA in 1978. We set up, in addition to the FISA court, a court of review consisting of three federal court of appeals judges who were appointed by the US chief justice. In 2002, they looked at this issue and they noted that every federal court that considered the issue had held that the president has independent, constitutional power to collect foreign intelligence. And the appeals court went on to say and the court of review said, “We assume that is true, and if it is true FISA cannot take that power away.” So what we’re talking about is the power of the president, right now, during a period of authorized war, to eavesdrop on what our nation’s enemies – members of Al Qaeda, the Taliban, outside this country – are saying to themselves and, if they happen to communicate with someone in this country who may be a legal “US person” but who may also be a Saudi or Afghan citizen who’s over here on a permanent resident alien status, of course we should be listening into these calls. And if they’re talking about where to sent the lamp they bought on eBay, then we erase the call – unless they happen to say, “Send payment to general delivery, Islamabad, and I’ll pick it up,” and if that’s bin Laden, then we try to send someone there to watch and intercept him. Otherwise, if they pick up calls that are not related to terrorist attacks, we erase that. We use minimalization procedures to protect any American information inadvertently picked up. But we ought to be listening. If bin Laden is talking to someone in this country and our government says that because of 4th Amendment concerns, we’re going to unplug the headphones every time those calls are made, they ought to be impeached for dereliction of duty. We want to be listening to these terrorists when they talk to people in this country to make certain they’re not trying to kill Americans. So I honestly – I’m passionate about some issues where I think the administration has gone horribly wrong. But on this one, I think it’s much ado about nothing.
WO: Jack Balkin, back to you… Do you argue with the idea that the president ought to be able to listen into conversations between Osama bin Laden and some other terrorist if in fact they suspect that’s what’s going on.
JB: No. And I would support the following amendment to FISA. It would say something like this: “A court order is not required for the acquisition of the contents of any communication between persons that are not located in the United States, for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the US or the surveillance device is located with the US.” I would support that. That would solve all the problems that Professor Turner described. Guess what? The administration rejected that. That was the Democratic proposal on the table. It wasn’t the only one but it was part of it. And the administration wanted more. And Turner’s point, which I think is correct, is that there’s a real problem that has to be fixed because of the technology. We should fix it. That language would do it. The administration wanted more than that. Why did it want more than that? Because it didn’t want Congress engaged in oversight. The other part of the Democratic bill would required the Attorney General to make regular reports to Congress about who was being surveilled, how many American citizen were involved, what was being done with the information. Exactly the points Professor Turner was making them have to do. And the administration refused repeatedly to have any form of oversight.
WO: Professor Turner quotes John Jay and many others as saying the president has that authority.
JB: No. That’s not what the president has the authority to do. You misquote him. If Professor Turner really meant that, he would believe that FISA is unconstitutional. And I know he doesn’t believe that. Rather, the point of FISA was to make sure that when the president engaged in foreign intelligence surveillance, as he has every right to do in the Constitution, and that intelligence is directed against US persons – right? – that certain procedures are put in place. That was the purpose of FISA. To make sure the president can do what he has to do with respect to foreign intelligence surveillance by agents of foreign powers, and to make sure that when intelligence surveillance affects Americans – US persons – there’s some set of procedures to affect it.
WO: So, Professor Turner, back to you. Would you then go along with the proposal as described by Jack Balkin as being that of the Democrats?
RT: That would be a good start. But I would go further. I do think FISA – and I felt in 1978 – is unconstitutional in terms of usurping powers vested directly in the president. Griffin Bell, Jimmy Carter’s attorney general, came before the Senate and testified on this, and he said, “ I know there is nothing in this recognizing the president’s independent power to authorize foreign intelligence. Obviously FISA could not take away a constitutional power.” That’s exactly the view taken by the Court of Review. So yes, I like FISA as a prudential matter in most settings, but in reality it claims powers that belong directly to the president. And it takes us back to the most important Supreme Court case of all times, Marbury vs. Madison, in which chief justice John Marshall said that an act of the legislature repugnant to the Constitution is not law. And so I think this is an area that the Constitution gives to the president, both as the executive under Article II, Section 1, and as commander in chief. And he ought to be doing this. And if he happens, in doing this… Every president, even before we had a country, when George Washington commander in the Revolutionary War, he authorized the interception of all mail coming in from Great Britain, the opening of the mail, and resealing it and sending it on so we wouldn’t tip off that we were reading it. Lincoln authorized the monitoring of telegraph traffic. Woodrow Wilson and FDR authorized the interception of international cable traffic, of the transcontinental cable. This is a long-standing practice. The check against this is not Congress, is not FISA – because the Constitution is supreme to the law – it’s the 4th Amendment. The 4th Amendment prohibits unreasonable searches and seizures. There’s a long line of Supreme Court cases dealing with what they referred to as “special needs” where they’ve authorized without any warrant, without any probable cause, without any individualized suspicion. They’ve authorized such things as border searches when people try to come into this country, they can search their bags. Every one of us who flies gets searched without any probable cause or warrant because they balance governmental interest against privacy interest.
WO: Jack Balkin?
JB: I’m just astonished that Professor Turner would even suggest that FISA is unconstitutional. That is just unbelievable to me! I assume that he meant more than that. I just simply want to say that both he and I are on the same side in terms of trying to update FISA with respect to technology. My basic claim is that there’s a way to do this that produces more oversight of the executive to make sure it doesn’t abuse the liberties of Americans. The most important thing we have to do is secure the US from terrorist attacks. What Congress passed the other day doesn’t do just that. It does a lot of other things that really are quite dangerous and we should be very concerned about them.
WO: Kevin Drum writes the blog, “Political Animal,” published by the Washington Monthly. …You have argued that the Democrats got snookered by the Bush White House in this argument. We heard earlier from Charlie Savage that all of a sudden, out of nowhere (a proposition disagreed with by Professor Turner) came this “crisis” that this law had to be passed before the Congress went off on its recess. What to you think happened?
Kevin Drum: Yes, I think that’s right. I think it’s an old negotiating ploy. You know, what you heard today is that on both left and right – Democrats and Republicans – agreed there are technical problems with FISA that needed to be fixed so we could monitor calls between two foreigners. Everybody agreed about that. What happened was that the Democratic leadership was negotiating with Mike McConnell, the director of national intelligence, and because of this agreement the negotiations were going smoothly, everybody was happy, and they came to an agreement with McConnell about this. At the very last second – literally on the day before Congress was about to be adjourned – they get blindsided by the White House claiming that McConnell didn’t quite know what was going on and they had to make some changes. Because everything had been going supposedly so smoothly, the Democrats weren’t prepared for this. I think they got blindsided by the White House. They had no backup plan; they had no plan to get their own people in sway. And about forty people – 40 congressmen and about 10 senators – sort of panicked and decided to go ahead and support the administration’s bill and it passed because of that.
WO: Panicked because they were concerned that they were going to be accused of being against tough measures against terrorism?
KD: That’s right. And they had done nothing prior to that to get public opinion on their side because they thought everything was going fine. I think the White House wanted them to think everything was going fine. Any labor leader would have been proud of the negotiating tactics, I think, that the White House engaged in here. It’s the oldest trick in the book, frankly.
WO: Back to Mark Rotenberg at the Electronic Privacy Information Center. Does this assume that Democratic veterans like Dianne Feinstein of California, who voted in favor of the bill that we are talking about, didn’t really understand what was going on?
MR: I think they were surprised. I think many people in Washington were surprised by how quickly things changed between Thursday afternoon – where there seemed to be an agreement on the narrow bill that Jack [Balkin] had described and the much more far-reaching proposal. But if I could, I just wanted to come back quickly to a point that Professor Turner had made earlier because I think it’s important to clarify a bit of this history. I’ve also worked in the Senate on wiretap laws and studied the history of privacy laws in the US. In almost every example he gave where the president asserted the right to intercept the mails during the Revolutionary War or radio communications and so forth, both the Congress and the courts had subsequently stepped in and established privacy protections. That was true when Ben Franklin wrote the first privacy law in the US for the Postal Service. And it was true after the Civil War when the Supreme Court upheld the privacy of the mails. And it’s true after WWI when there was also an important decision in Congress. But I think what’s most relevant to our discussion today about these amendments to the FISA was the work of the Church Commission in the 1970’s which found, in fact, that the foreign intelligence surveillance capabilities of the US government were being directed to US political organizations, directed against war protesters and against civil rights organizers. And that’s the legacy of this law that I don’t think we should lose sight of.
WO: Let me go back to Kevin Drum… What do you think is going to happen when Congress comes back into session and the Democrats try to take another look at this?
KD: I hope they’re going to do a bit better. They really need to learn how to play in the big leagues, and with six months to prepare I can only hope that they’re able to do a little bit better. And not quite take everything at face value the way they seem to have done the first time around.