The Old Flimflammer Keeps on Trucking

05/25/2011 12:25 pm ET

Is there a moral center to President Bush? He won't allow stem cell research and he's against abortion, but so much of what he says is clearly calculated to prey on our fear of terrorism, and so much is simply untrue. But neither Democrats nor the media are prepared to challenge those falsehoods.

Last week, for example, the White House released a statement warning of dire results should the Protect America Act be allowed to expire at midnight Saturday with no law to take its place. The statement was a gross misrepresentation of the government's ability to investigate terrorist suspects, in that it failed to acknowledge that the 1978 Foreign Intelligence Surveillance Act would still be in force, providing the surveillance tools that have been used in numerous espionage and terrorism investigations, including, for example, the investigation into the 1998 East African embassy bombings.

The White House had exaggerated the significance of the PAA ever since demanding that Congress pass it, last summer; and the media helped distort things further, apparently failing to grasp that during its six months of life the PAA did not broaden the government's wiretapping powers at all.

This might come as a surprise to readers of The New York Times, but in truth the PAA gave intelligence professionals no more tools than they already possessed under FISA. The January 2008 United States Code Service update on federal laws and amendments, published by LexisNexis, notes that FISA continued to function and still required warrants for the same categories of surveillance, and only those categories, that it had before passage of the PAA. This left the PAA to authorize surveillance of foreign targets in other countries, which never needed legal authorization in the first place because that surveillance was excluded from FISA.

In other words the PAA was an essentially redundant piece of legislation, making legal what had never been illegal. Now that the PAA has expired, intelligence agencies, for example the National Security Agency and U.S. Army intelligence, are free to continue to eavesdrop on foreigners abroad under their own procedures, just as they were before and during the PAA's short life.

But the Times, other media and civil liberties advocates have continued to portray the PAA as a power grab, thereby indirectly assisting Bush and Director of National Intelligence Mike McConnell's disinformation campaign. For example, the Times reported Feb. 20 that the NSA warrantless wiretapping program had received "Congressional authorization" with the enactment of the PAA last August. But that cannot be true, because the PAA authorized no surveillance that previously required a warrant under FISA.

The administration has said many times that technological changes are what produced the problem that the PAA fixed. This is how McConnell put it in remarks reported by the Times on Aug. 11, a few days after the PAA was passed and signed into law by Bush:

"It was crazy, because I'm sitting here signing out warrants on known Al-Qaeda operatives that are killing Americans, doing foreign communications. And the only reason I'm signing that warrant is because it touches the U.S. communications infrastructure. That's what we fixed."

Was McConnell implying that, because of a technological quirk that brings foreign communications through the United States, those communications are subject to a warrant only if they are intercepted within the United States? Nothing in FISA seems written to cover that.

Yet the PAA was needed, the administration said, in order to clarify that FISA did not require warrants for surveillance of targets outside the United States. But doesn't that imply that government lawyers believed last year's ruling by a FISA court judge, that a warrant was required to eavesdrop on a phone call between two terrorists in a foreign country that was routed through U.S. switching stations, amounted to a misreading of the law? Which in turn raises the question: Why didn't the administration simply appeal the ruling to the FISA review court, just as it had appealed a 2002 ruling that it disagreed with, instead of calling on Congress to pass a new law? Dean Boyd, a Justice Department spokesman, said he'd get an answer for me.

There are reasons to believe that calls between two foreigners in, say, Iraq or Pakistan, do not in fact pass through U.S. switches (see my Jan. 22 blog).

I asked Boyd about a military intelligence regulation, renewed last year, two months before the PAA became law, that appears to contain all the necessary authority for a U.S. Army intelligence officer in Iraq, say, to use electronic surveillance to intercept a phone call between two insurgents (see Jan. 22 blog). He said he had not heard of the regulation but would research it.

Why did the Democrats in Congress simply take the administration's word that because of a FISA court ruling warrants were now needed for a whole category of communications that had previously been excluded from FISA? I tried asking Sen. Edward Kennedy, but his press secretary deflected my question. Kennedy should be familiar with FISA, having introduced the FISA bill in 1977 and held hearings on it. I also tried to get a reply from the offices of Senate Majority Leader Harry Reid, Sen. Patrick Leahy, Sen. Russell Feingold, himself quite a fierce critic of the PAA, and House Speaker Nancy Pelosi. But no luck.

The PAA does not do a thing to protect America that FISA did not already do. When Bush and McConnell said they urgently needed FISA reformed they were bluffing, but no Democrat called their bluff back in August. They're still bluffing. Bush has made the Democrats dance to his tune once again.