June 20, 2008—House Speaker Nancy Pelosi claims that a key positive feature of the new wiretap “compromise” is that the bill reaffirms that the President must follow the law, even though the same bill virtually assures that no one will be held accountable for George W. Bush's violation of the earlier spying law.
In other words, in the guise of rejecting Bush’s theories of an all-powerful presidency that is above the law, the Democratic leadership cleared the way for the President and his collaborators to evade punishment for defying the law.
So, why should anyone assume that the new legislative edict demanding that the President obey the law will get any more respect than the old one, which established the Foreign Intelligence Surveillance Act of 1978 as the “exclusive” means for authorizing electronic spying?
It wasn’t that Bush and his team didn’t understand the old law’s language; they simply believed they could violate the law without consequence, under the radical theory that at a time of war – even one as vaguely defined as the “war on terror” – the President’s powers trump all laws as well as the constitutional rights of citizens.
Essentially, Bush was betting that even if his warrantless wiretap program was disclosed – as it was in December 2005 – that he could trust his Republican congressional allies to protect him and could count on most Democrats not to have the guts to challenge him.
His bet proved to be a smart one. After the New York Times revealed the warrantless wiretaps 2½ years ago, Congress took no steps to hold Bush accountable. Before the 2006 elections, Pelosi declared that Bush’s impeachment was “off the table.”
Then, on the eve of the August 2007 recess, the Democratic-controlled Congress was stampeded into passing the “Protect America Act,” which effectively legalized what Bush had already done and expanded his spying powers even more.
After that law was passed, U.S. news reports mostly parroted the White House claim that it “modernized” FISA and “narrowly” targeted overseas terror suspects who might call or e-mail their contacts in the United States.
However, it soon became clear that the law applied not just to terror suspects abroad who might communicate with Americans, but to anyone who is “reasonably believed to be outside the United States” and who might possess “foreign intelligence information,” defined as anything that could be useful to U.S. foreign policy.
That meant that almost any American engaged in international commerce or dealing with foreign issues – say, a businessman in touch with a foreign subsidiary or a U.S. reporter sending an overseas story back to his newspaper – was vulnerable to warrantless intercepts approved on the say-so of two Bush subordinates, the Attorney General and the Director of National Intelligence.
Beyond the breathtaking scope of this new authority, the Bush administration also snuck in a clause that granted forward-looking immunity from lawsuits to communications service providers that assisted the spying.
That removed one of the few safeguards against Bush’s warrantless wiretaps: the concern among service providers that they might be sued by customers for handing over constitutionally protected information without a warrant.
In short, the “Protect America Act” made warrantless surveillance legally cost free for a collaborating service provider, tilting the scales even further in favor of the government’s spying powers. [For details, see our book, Neck Deep, or Consortiumnews.com’s “Bush Gets Spying Blank Check.”]
A week after the “Protect America Act” was passed, the New York Times and the Washington Post published front-page stories explaining how the Bush administration had ambushed the Democrats.
Pressed up against the start of the August recess and the prospect of Republican taunts that Democrats were “soft on terror,” the Democratic leaders abandoned earlier compromise proposals and accepted the more expansive law. Their one point of resistance was putting a February 2008 sunset provision into the law.
Still, the Democratic cave-in in August 2007 provoked an uproar among rank-and-file Democrats. Pelosi’s office reported receiving more than 200,000 angry e-mails.
Stung by the reaction, House Democratic leaders balked at White House pressure to make even more concessions, including retroactive immunity for telecommunication companies that had collaborated with Bush’s warrantless wiretaps in the years after the 9/11 attacks.
In February 2008, to the surprise of many observers, the Democratic leadership allowed the “Protect America Act” to lapse. Though Republicans attacked the Democrats as expected, the accusations seemed to have little political resonance.
Nevertheless, the Democratic leadership – behind Sen. Jay Rockefeller, D-West Virginia, and Rep. Steny Hoyer, D-Maryland – continued working on a compromise.
While the new version drops some of the more intrusive features of the “Protect America Act,” such as allowing warrantless wiretaps of Americans outside the United States, the bill adds retroactive telecom immunity (only requiring the companies show they got a written order from the President).
The bill also would grant the administration emergency power to wiretap a target for up to one week before getting a warrant from the secret FISA court. But the bill bars the government from targeting a foreigner as a "back-door" way to spy on an American without a court warrant.
Sen. Russell Feingold, D-Wisconsin, a strong constitutionalist, termed the new bill “not a compromise; it is a capitulation.”
One of the bill’s illusions would seem to be that the precedent of a President ignoring the FISA law and escaping any accountability can somehow be negated by restating what the original, violated law had declared.
In her June 20 floor statement, Pelosi said in her view this was a crucial feature of the bill, the statement that the President cannot ignore the FISA law again. However, Pelosi’s position sounded like the words of an indulgent parent of a spoiled child: “This time I really mean it!”
The more powerful message from the latest Democratic compromise is that a President – at least a Republican one – can break the wiretap law under the cover of national security and expect to ride out the consequences.
Rather than reaffirming the rule of law and the Constitution’s checks and balances, as Pelosi claimed, the new FISA “compromise” may have done the opposite, signaling that the President is above the law.
After Pelosi’s speech, the House passed the bill by a 293-129 margin with 105 Democrats – including most of the leadership – voting in favor and 128 Democrats against. The bill then went to the Senate, which was expected to approve it.
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This story was published on June 23, 2008.