Center for American Progress

Civil Liberties: ‘One Bomb Away’ From No Oversight

Civil Liberties: ‘One Bomb Away’ From No Oversight

Last month, just before leaving for August recess, Congress caved to White House pressure and passed a revision to the Foreign Intelligence Surveillance Act (FISA), known as the Protect America Act, which "they may not have fully understood" and "may have given the administration more surveillance powers than it sought."

SEPTEMBER 5, 2007 by Faiz Shakir, Amanda Terkel, Satyam Khanna, and Matt Corley
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‘One Bomb Away’ From No Oversight

Last month, just before leaving for August recess, Congress caved to White House pressure and passed a revision to the Foreign Intelligence Surveillance Act (FISA), known as the Protect America Act, which “they may not have fully understood” and “may have given the administration more surveillance powers than it sought.” Due to ambiguous language, the new legislation may allow, without court approval, certain types of physical searches on American soil and the collection of Americans’ business records. Additionally, the legislation trampled warrant requirements by broadly redefining “electronic surveillance” while shifting significant oversight responsibility for the surveillance from the FISA court to the Attorney General and the Director of National Intelligence. Calling the bill “unacceptable,” Speaker of the House Nancy Pelosi (D-CA) wrote to the respective chairmen of the House Judiciary and House Intelligence committees soon after the legislation passed, asking that they address the “many deficiencies” in the Protect America Act before the legislation sunsets in five months. Senate Majority Leader Harry Reid (D-NV) has requested similar fixes in the Senate. This morning, in a hearing before the House Judiciary Committee, Congress will take its first steps towards addressing the overreach of the bill. But they can expect stiff resistance from the Bush administration, which has signaled a desire to further strip oversight of their surveillance powers.

SEEKING IMMUNITY FOR PAST CRIMES: The Bush administration is currently seeking “the power to grant legal immunity to telecommunications companies” that violate privacy laws by “cooperating with the White House’s controversial warrantless eavesdropping program.” Though the administration refuses to “identify which companies participated in the operations,” at least two companies — AT&T and Verizon — are currently facing lawsuits for their alleged involvement in the program. The administration has invoked the “state secrets” privilege as an attempt to dismiss such lawsuits, but some judges are skeptical of that argument. The administration is pushing forward with an effort to “shield any person who allegedly provided information, infrastructure or ‘any other form of assistance‘ to the intelligence agencies after the Sept. 11, 2001 terror attacks.” Democrats, such as Sen. Ron Wyden (D-OR), charge that the administration’s proposal “would go far beyond protecting private companies and their employees, also giving cover to any government officials who may have broken the law.” But the White House is preparing to push its proposal using its usual scare tactics. In a recent interview with the El Paso Times, Director of National Intelligence Mike McConnell claimed that “if you play out the suits at the value they’re claimed, it would bankrupt these companies.” In the same interview, McConnell ominously warned that public discussion of the administration’s surveillance powers would cause “some Americans…to die.”

LEGISLATION VIA FEARMONGERING: Though the administration has consistently sought expanded surveillance powers since soon after 9/11, the recent push for changes to FISA began in March when a judge on the secret FISA court “challenged for the first time the government’s ability to collect data” through aspects of the administration’s so-called Terrorist Surveillance Program. The White House claimed the ruling, which concluded “that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States,” forced them to seek warrants from the FISA court every time it wanted to capture such communications. Congressional leaders were willing to fix the gap, but demanded proper oversight of the program as well as access to the legal opinions the administration used to originally justify the NSA program. But the administration balked, instead “using fresh reports of a growing terrorism threat” to scare Congress into passing the legislation before leaving for the August recess. “The situation was key to making it work,” said a senior administration official, adding that a July report of a resurgent al-Qaeda was “fortuitous” for the administration’s legislative maneuvering.

CONTEMPT FOR OVERSIGHT: In an interview with The Progress Report soon after the Protect America Act was pushed through Congress, Rep. Joe Sestak (D-PA), one of 183 representatives to vote against the bill, described the administration’s contempt for the oversight provided by the FISA court. “We made the three major changes that [McConnell] wanted,” said Sestak. “The issue here is they just don’t want to come to the FISA court. That’s enough to tell me we need them to.” In recent interviews and an upcoming book, former Bush administration official Jack Goldsmith confirms Sestak’s description of the administration’s fundamental contempt for oversight. “After 9/11, they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like,” writes Goldsmith in his upcoming book. “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.” “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls current vice presidential chief of staff David Addington, whom he described as “the chief legal architect of the Terrorist Surveillance Program,” saying in February 2004. Goldsmith is set to testify before the Senate Judiciary Committee this month at a yet to be determined date.


TERRORISM — NEW TERRORISM SURVEY FINDS IRAQ HAS MADE WORLD MORE DANGEROUS: The Center for American Progress and Foreign Policy magazine recently issued a new report that found that 91 percent of foreign policy experts surveyed believe that the world is becoming more dangerous for the United States. The third report of their “Terrorism Index” series asked more than 100 foreign policy experts from both political parties — 80 percent of whom have served in the U.S. government or military — about their views about the United States’s fight against terrorism. The report found that 84 percent disagreed that the United States is winning the war on terror; a full 92 percent of the experts said that the Iraq war negatively affects U.S. national security. Over half of those interviewed, including 64 percent of conservatives, said the impact of the troop escalation in Iraq has been negative, and 68 percent believed troops should be redeployed out of Iraq. Today, the Center for American Progress will host a 90-minute discussion on the index, featuring, among others, former CIA Director R. James Woolsey.

CONGRESS — BOEHNER CAUGHT SHIFTING HIS OWN BENCHMARKS ON IRAQ ESCALATION: On Jan. 23, 2007, just weeks after President Bush announced his escalation plan in Iraq, House Minority Leader John Boehner (R-OH) said on CNN, “I think it will be rather clear in the next 60 to 90 days as to whether this plan is going to work.” Fifty-nine days later, with violence still high in Iraq, The Progress Report noted that Boehner’s time had expired. But Boehner refuses to relent. After yesterday’s Government Accountability Office report stated that violence “remained unchanged” despite the troop increase — over seven months after Boehner gave his timeline — Boehner backtracked on his word and claimed that the escalation has been in effect “only for a couple of months.” “The GAO report really amounts to asking someone to kick an 80-yard field goal and criticizing them when they came up 20 or 25 yards short,” he said. “Rather than weighing whether or not Iraqis are making progress toward meeting goals, it asked whether or not they’ve met them — even though Operation Phantom Thunder has been underway for only a couple months. That’s an unfair way to judge our troops’ progress.” After admitting the escalation began in January, Boehner now has shifted his own benchmarks in order to demand another Friedman Unit for the surge.

IRAQ — BUSH’S ‘SUPPORT THE TROOPS’ CLAIM PROVES LITTLE MORE THAN RHETORIC: Though President Bush has frequently pledged to protect and support the U.S. armed forces — campaigning on a constant call to “support the troops” — a USA Today investigation found that the White House and military had consistently cut or underfunded programs, forcing Congress to take “extraordinary measures” to secure armor for the troops. Former Secretary of Defense Donald Rumsfeld and the Pentagon were slow to respond to calls from the battlefields for the lifesaving or Mine Resistant Ambush Protected vehicle (MRAP) prompting Rep. John Murtha (D-PA) to step up his demands, along with several other members of Congress. “My sorrow is that it took an inordinate number of deaths of soldiers…to make the Pentagon realize we needed to get away from Humvees,” said Rep. Mary Landrieu (D-LA), who worked to secure the production of Army Security Vehicles. These failures are “a manifestation of this larger issue: doing just enough to try to win this…without mobilizing the nation for war,” said retired Marine Lt.Gen. Paul Van Riper, a Vietnam and Desert Storm veteran.


A recent poll finds 52 percent of Australians believe President Bush is the worst U.S. president ever, primarily due to his Iraq war policy. Yesterday, Australian Prime Minister John Howard told Bush he would not reduce the 1,600 Australian forces in Iraq.

The nation’s Medicaid directors yesterday told the Bush administration that its new restrictions on the federally funded State Children’s Health Insurance Program will limit the number of children covered. In a letter to Health and Human Services Secretary Mike Leavitt, the National Association of State Medicaid Directors “said the new standards reduce flexibility, making it difficult for states to expand coverage.”

“A half-hour before his Saturday news conference announcing his plans to resign, Sen. Larry Craig left a voice mail — at a number he apparently didn’t intend to dial — stating his intent to possibly rethink the decision.’ Listen to the audio here.

The Americans Against Escalation in Iraq have released a new ad calling out President Bush’s suggestion that he will reduce troop levels. “Do they really mean it this time?” Watch the ad here.

By a vote of 69-24, the Senate approved Jim Nussle to replace Rob Portman as the director of the Office of Management and Budget. Budget Committee Chairman Kent Conrad (D-ND) voted against Nussle’s confirmation because he feared Republicans could portray a yes vote “as a sign of support for the president’s failed fiscal policy.” 

“His speech will be noticeably slower and he’ll be zipping around in a motorized wheel chair, but Sen. Tim Johnson (D-SD) will do something on Wednesday that did not seem possible last December — he’ll give an address on the Senate floor.”

The controversial docudrama Path to 9/11 has hit a snag in its plans for a nationwide DVD release. The $40-million, five-hour ABC miniseries “is for now on the path to nowhere.” Cyrus Nowrasteh, the conservative activist who produced the series, is blaming the Hillary Clinton campaign for the stalled release.

And finally: Al Gore (No. 1) tops President Bush (No. 2) — at least in the second annual “Harvard 100” ranking, recognizing the university’s most influential living alumni. “Interestingly enough, newly resigned Attorney General Alberto R. Gonzales finished last on the list at No. 100.”

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“New York’s first publicly-funded Arabic-language school opened on Tuesday, defying critics who warned it could foster anti-American Islamist extremism.”


CALIFORNIA: Partisan power grab for votes linked to Swift Boat funder.

EDUCATION: In recent months, “governors and lawmakers from more than a dozen states have sealed deals to spend far more public money on childhood education.”

ECONOMY: Gulf Coast states affected by Hurricane Katrina are facing a crisis in homeowners insurance coverage.


THINK PROGRESS: Government Accountability Office chief suggests the Bush administration is cooking the books on levels of sectarian violence in Iraq.

YEAS & NAYS: Supreme Court Justice David Souter was so upset with the decision in Bush v. Gore that he considered resigning from the court.

POLITICAL INSIDER: Some conservatives, such as the Weekly Standard’s William Kristol, are dreaming of Gen. David Petraeus as a vice presidential candidate.

CLIMATE PROGRESS: “Arctic ice loss is ‘stunning,’ total loss possible by 2030, scientists warn.”


“General Petraeus told The Australian during a face-to-face interview at his Baghdad headquarters there had been a 75 percent reduction in religious and ethnic killings in the capital between December last year and this month.”
— The Australian, 8/31/07


“[A]verage daily attacks against civilians have remained unchanged from February to July 2007.”
— Government Accountability Office report, 9/4/07

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