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Jonathan Alter Headshot

I Know What You Did Last Summer

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I hate to sound melodramatic about it, but while everyone was at the beach or "The Simpsons Movie" on the first weekend in August, the U.S. government shredded the Fourth Amendment to the Constitution, the one requiring court-approved "probable cause" before Americans can be searched or spied upon. This is not the feverish imagination of left-wing bloggers and the ACLU. It's the plain truth of where we've come as a country, at the behest of a president who has betrayed his oath to defend the Constitution and with the acquiescence of Democratic congressional leaders who know better. Historians will likely see this episode as a classic case of fear -- both physical and political -- trumping principle amid the ancient tension between personal freedom and national security.

Congress had good reason to amend the 1978 Foreign Intelligence Surveillance Act (FISA). After the shift from satellites to fiber-optic cable for most international phone calls, the statute was as out of date as disco. With Congress, the courts and President Bush squabbling over his illegal wiretapping program, the government was actually conducting less surveillance of foreign nationals than before 9/11, which was crazy. We had to do more listening in, especially with scary new intelligence "chatter" suggesting an unspecified attack on the U.S. Capitol this summer. Congressional sources who attended the late-July classified intel briefings, but won't talk about them for the record, say these threats didn't sound like spin. After all, we're not talking here about trumped-up Iraqi WMD, but Al Qaeda terrorists who have already tried to kill us.

So members of Congress are legitimately afraid that they and their families will get blown up this summer. Fair enough. But then they lost their heads and sold out the Constitution to cover their political rears while keeping the rest of us mostly in the dark. The reason we don't know more about what happened is that the United States has moved sharply in recent years from legitimate secrecy -- regarding sources and methods -- to the bogus kind the late senator Daniel Patrick Moynihan and others warned will wreck democracies. For instance, the abstract legal arguments used by the shadowy FISA court to strike down Bush's surveillance program are secret. Why? Because they might be politically embarrassing.

Here's what we do know. We know that the Democratic leadership rightly conceded to Adm. Michael McConnell, the once widely respected director of National Intelligence, to allow eavesdropping on foreigner-to-foreigner communications routed through American phone companies (no biggie; we've always spied on foreigners). We know that the Democrats thought they had a deal until McConnell, who is supposed to be nonpartisan, went back to the White House and got fresh marching orders to squelch reasonable judicial oversight by the FISA court. And we know that the administration's new position was that the attorney general (the disgraced Alberto Gonzales) should have the sole authority to spy without a warrant on any American talking to a foreigner, even if it's you and the guy from Mumbai fixing your printer.

Then the Democrats said: "Wait a minute! That's unconstitutional!" Right? Actually, no, they didn't. Even liberals like Rep. John Conyers, chairman of the House Judiciary Committee, argued in two heated, closed-door meetings on Aug. 3 that the Democrats might as well cave. Otherwise, they would be pounded during the August recess for ignoring national security and destroyed as a party if the country were actually attacked. Even though the leadership and 82 percent of House Democrats voted against the bill, they did not block it, delay the recess and hold the Congress in session. The private excuse was that the liberal base wouldn't be satisfied no matter what they did, and that Senate Majority Leader Harry Reid couldn't make the more conservative Senate go along anyway. Apparently, there's always an excuse for leaving for vacation on time.

Afterward, House Speaker Nancy Pelosi said publicly that many provisions were "unacceptable" and the House would revisit the newly signed legislation "as soon as possible." Democrats obtained a sunset clause that requires the whole thing to be reauthorized in six months. But real damage has been done. At a minimum, we have suspended the Fourth Amendment for the time being. Doing so might conceivably be excusable if we're likely to catch terrorists this way. But with a tiny number of Arabic speakers asked to translate thousands of transcripts, there's little chance we'll find a needle in the haystack. If our snooping technology were so terrific at nabbing bad guys, we'd brag to Al Qaeda about it as a form of deterrence instead of keeping it secret. "Secrecy is for losers," Moynihan liked to say, in a time before we began losing freedom and security simultaneously.

Originally published in Newsweek.