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February 28, 2008

Bush, Congress Wrangle Over Domestic Spying


by William Fisher

Former senior intelligence officials are disputing claims by the George W. Bush administration that the failure of Congress to pass a new foreign surveillance law is jeopardizing the country's national security.

In a letter to Admiral Mike McConnell, the director of national intelligence, the officials say "the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication."

Charging that the government's assertions to the contrary "have distorted rather than enhanced" public understanding, their letter says, "The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law."

The letter was signed by two former officials at the National Security Council – Rand Beers, who was senior director for combating terrorism, and Richard A. Clarke, who served as head of counterterrorism; as well as Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency.

The controversy has been triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped US phone and computer lines at the government's request after the Sep. 11, 2001 terrorist attacks, without court permission.

A similar bill was passed by the House of Representatives, but the House version did not provide immunity.

Congress left Washington for the President's Day recess in mid-February without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.

Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sep. 11, 2001 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.

Bush and McConnell have claimed that the telecom companies were acting legally and patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.

Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."

He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."

The Democrats have responded by accusing Bush of resorting to "scare tactics and political games".

Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The FISA law has been modernized nearly a dozen times since the terrorist attacks of Sep. 11, 2001, to keep abreast new communications technologies.

Many legal experts and civil liberties advocates disagree with President Bush's claims that Congress' failure to extend the PAA has increased United States' vulnerability to terrorist attacks.

Typical is Prof. Peter Shane of the University of Ohio law school, told IPS, "Bush's position is senseless."

He said, "First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush administration lawlessness in conducting its so-called terrorist surveillance program."

His view was echoed by Clayton Northouse, information policy analyst for OMB Watch, a Washington-based open-government research group. Northouse told IPS, "Since day one, the administration has used the guise of national security to unilaterally increase the power of the executive. This exposes the administration's position as a blatant power grab."

"The letter from senior intelligence officials shows us that the Bush administration isn't upset because the country is weakened by the House's decision not to reauthorize PAA and grant telecom immunity," Northouse said. "Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches."

(Inter Press Service)

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  • William Fisher writes for Inter Press Service.

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