In his weekly radio address on Saturday, President Bush implored Congress to amend the Foreign Intelligence Surveillance Act (FISA): One of the most
July 29, 2007

bushphone.jpgIn his weekly radio address on Saturday, President Bush implored Congress to amend the Foreign Intelligence Surveillance Act (FISA):

One of the most important ways we can gather that information is by monitoring terrorist communications. The Foreign Intelligence Surveillance Act -- also known as FISA -- provides a critical legal foundation that allows our intelligence community to collect this information while protecting the civil liberties of Americans. But this important law was written in 1978, and it addressed the technologies of that era. This law is badly out of date -- and Congress must act to modernize it.

Today we face sophisticated terrorists who use disposable cell phones and the Internet to communicate with each other, recruit operatives, and plan attacks on our country. Technologies like these were not available when FISA was passed nearly 30 years ago, and FISA has not kept up with new technological developments. As a result, our Nation is hampered in its ability to gain the vital intelligence we need to keep the American people safe.

I know you’ll be shocked to hear it, but your President is intentionally misleading you.

It’s true, of course, that FISA was enacted in 1978, well before the arrival of email and cellular phones. But what the President is not telling you is that FISA has been frequently amended since then, including several times subsequent to 9/11. Indeed, the primary purpose of the Patriot Act was to update and modernize FISA. But you don't need me to tell you that. Here's what the President himself said when he signed the Patriot Act into law:

We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. . . .

The very next day, the President said essentially the same thing in his weekly radio address:

The bill I signed yesterday gives intelligence and law enforcement officials additional tools they need to hunt and capture and punish terrorists. Our enemies operate by highly sophisticated methods and technologies, using the latest means of communication and the new weapon of bioterrorism.

When earlier laws were written, some of these methods did not even exist. The new law recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations -- and also to detect them before they strike.

Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

It never ceases to amaze me how brazen this administration is in its dissembling. Apparently we're just supposed to forget that the Patriot Act ever happened.

As is typical with this administration, though, its dishonestly actually pales in comparison to its hypocrisy. The President ended this week's address by admonishing Congress:

Congress needs to act immediately to pass this bill, so that our national security professionals can close intelligence gaps and provide critical warning time for our country.

As the recent National Intelligence Estimate reported, America is in a heightened threat environment. Reforming FISA will help our intelligence professionals address those threats -- and they should not have to wait any longer. Congress will soon be leaving for its August recess. I ask Republicans and Democrats to work together to pass FISA modernization now, before they leave town. Our national security depends on it.

Remember, FISA is the same statute that the administration has been violating since 2001 and which the president claims he has the power to violate at will. And for the better part of a year--from the time the NSA program was first exposed in late 2005 until late 2006--the Bush administration aggressively fought any attempts to amend FISA, claiming that it had all the authority it needed.

It wasn't until after the Hamdan decision last year that the Bush administration began warming up to the idea of amending FISA to "legalize" its controversial surveillance activities. And even then, the plan was to use the "Terrorist Surveillance Bill" as a weapon against Democrats in the 2006 mid-term election ("the Democrats support terrorists' rights!"). The bill ended up passing the House but not the Senate. Since then, the Bush administration has made no effort to seek amendments to FISA.

But now, out of the blue, the President is claiming that Congess must immediately act to modernize FISA (again) and grant him all sorts of new statutory powers, powers which he has repeatedly claimed that he already has.

I suppose the silver lining in all this is the fact that the President feels he needs to seek such legislation. It's been clear for some time now that the Bush administration has zero confidence in the legal theories that it has used to defend its surveillance activities. They've seen these arguments rejected repeatedly in other contexts and they know they'll never survive judicial scrutiny. Despite the dishonest bluster and hypocrisy, this is a humbling experience for the president. He is implicitly conceding that he does not have the "inherent" power to simply conduct whatever surveillance he chooses, regardless of what the law says. He needs Congressional authorization. That's a baby step in the right direction.

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