“The Intent Here Was Pure”

by digby

Jonathan Alter is very shrill:

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.

[…]

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

There has been a good deal of discussion about why the Democrats really did this, with opinions basically dividing into it being either a desire to allow the Bush administration to do anything it feels it needs to to protect us or a political fear that the Bush administration would call them soft on terrorism if they failed to pass the bill.

Both are despicable reasons for shredding the fourth amendment. The idea of being called soft on terrorism if they failed to pass the bill is predictable Democratic political malpractice. But I actually became convinced that it was the other reason that motivated them: they believe the president should have these extra-constitutional powers. And that reason is the one that really scares me. A majority of our representatives apparently agree that the constitution can be set aside if they are afraid of something.

And nobody has yet explained to me exactly how passing this FISA bill was supposed to stop these impending terrorist attacks that the administration had been “chattering” about in Washington all summer on the q.t. Was there some reason to believe that they had not been able to nail something down because they were so afraid of breaking the law — the law which they’d already been breaking for years? It makes no sense.

But it doesn’t have to make sense because it isn’t about a particular program, which most members of the congress are all to happy not to know anything about. The problem is that they have bought George W. Bush’s authoritarian paternalistic mantra that the president’s primary job is to “keep us safe.”

Do you ever remember hearing that before 9/11? I don’t. I don’t recall any civics classes or history books saying that the president’s primary responsibility is to protect the American people.” In fact, the oath of office says something very specific about what the president is supposed to “preserve and protect” and it’s the constitution. We were supposed to be a brave nation of hardy yeoman farmers and bourgeois businessmen — individualists who came together when under attack to protect ourselves.I don’t ever remember, in my lifetime anyway, the president constantly saying that we should be “comforted” by the fact that he was doing everything in his power to keep us safe from harm. It’s rubbed me the wrong way from the beginning. It makes us sounds like a nation of infants.

Yet I think that idea has taken hold somehow — that we need to let our Daddy/president do what he has to do to keep the family safe, and if that means beating cousin Tommy senseless because you found a couscou in his backpack and then locking us all in the basement for our own good, well, so be it. And even if it’s clear he’s been watching too much “24” and popping Mom’s prescription diet pills — we have to let him do whatever he thinks is necessary because he’s the only one who can keep us safe. Don’t ask questions, father knows best.

As long as the president, any president, can set off a chain of rumors in Washington that the boogeymen are coming to kill all the congressmen and their families in their beds if they don’t let him (or her) do what he wants, then they are going to be able to pretty much do anything in the name of national security, aren’t they, particularly if they’ve all internalized this nonsense that the president’s main job is to “protect them” by any means necessary. Even if it makes no sense. Even if it won’t work.

Bin laden needn’t have bothered taking down the world trade center. It appears that the DC operation would have sufficed to get the US to turn itself into an mindless bowl of jelly.

Alter explains what happened behind the scenes and it’s so ugly, I can barely read it without feeling nauseous.

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.

Aside from the disgusting cravenness of that, what does it tell you that Reid couldn’t get the “more conservative” Senate to go along? It means that the more conservative Senate — including a fair number of Democrats — believes that the President should have the right to eavesdrop on you when you call in to argue about your credit card receipt with some customer service clerk (you don’t know is) in Mumbai.

And now we find out that the legislation was actually much worse than we knew before:

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.

[…]

“This may give the administration even more authority than people thought,” said David Kris, a former senior Justice Department lawyer in the Bush and Clinton administrations and a co-author of “National Security Investigation and Prosecutions,” a new book on surveillance law.

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.

These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.

It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month’s Congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans.

“We did not cover ourselves in glory,” said one Democratic aide, referring to how the bill was compiled.

But a senior intelligence official who has been involved in the discussions on behalf of the administration said that the legislation was seen solely as a way to speed access to the communications of foreign targets, not to sweep up the communications of Americans by claiming to focus on foreigners.

“I don’t think it’s a fair reading,” the official said. “The intent here was pure: if you’re targeting someone outside the country, the fact that you’re doing the collection inside the country, that shouldn’t matter.”

The intent was pure. Oh my god.

It’s impossible for me to believe that all this is an accident or that it’s just a case of extreme political malpractice. The biggest political story of the summer was the stunning revelation by James Comey that the entire upper echelon of the Department of Justice was prepared to resign in 2004 if the administration continued its illegal wiretapping program. The Attorney General himself is accused of committing perjury in his testimony about that event. Editorial pages throughout the country and senior senators of both parties have said he should resign. There has been a serious dialog about impeaching the president, vice president and the attorney general largely on the basis of this particular case. The political implications, with it’s high drama and resonance with Watergate, are huge.

The degree of imeptitude required to allow this potent political issue to be completely destroyed by passing this legislation and essentially codifying the program in question into law seems a bit much even for the challenged Dems. I actually give them more credit than that. It’s hard for me to believe anyone could be this stupid. They got the bill passed because they wanted to give the president the authority he needs to do “whatever it takes to protect us.”

And anyway,

…the liberal base wouldn’t be satisfied no matter what they did

That’s just not true. If they had passed a bill that allowed some technical changes to the law that already allows foreign-to-foreign wiretapping that did not intrude on American’s fourth amendment rights, as they said they were going to do, I really doubt many of us would have objected. But they went much further than that and what we are left with is a law that blows another hole in the fourth amendment with an assurance by The Bush Administration that their “intent was pure.” And their argument about the warrantless wiretapping has been unceremoniously flushed down the toilet. An accident? Really? ok…

It’s a good thing our Daddy loves us. It hurts him more than it hurts us to have to do this.

Update: Tommy Stevenson of Tuscaloosa News.com has this quote from Democratic congressman, Artur Davis:

“Should the perfect be the enemy of the good?” Davis said. “Now in an ideal world, I would like to see us in a place where if a communication touched someone in the United States you would have go get a warrant, but the problem is that wasn’t one of the options we had before us.

“Sometimes in the process you’ve got to make hard choices in real time.”

In this case, Davis said he thought the most important thing was to close the loophole that had been made public and ripe for exploitation by terrorists.

“We closed the gap involving foreign-to-foreign communication that passes through U.S. portals,” he said. “Everybody knew that needed to be fixed because communication that passes though U.S. ‘wires’ does not attach Fourth Amendment protections.

“if we had not closed that gap, that gap would be real and in existence today and ready to be exploited by, say, terrorists in Islamabad communicating with people in Canada to plan an attack.”

The more cynical of the critics of the changes Congress made to the FISA law say the Democrats who crossed over to vote with the Republicans and gave Bush what he wanted, especially the House members all of whom are up for reelection next year, were afraid of being branded as “soft on terror” in the election.

Davis, Alabama’s only black member of Congress, has a relatively safe seat, at least as far as GOP opposition goes, in his majority black district. In fact, since the former Birmingham lawyers and assistant federal prosecutor did not come up through the ranks of the black political establishment, he will always be most vulnerable in the Democratic primary, where a vote against the FISA changes would not have hurt him one bit.

But the second-term congressman shrugged off that analysis.

“The most important thing we had before us last week was closing that glaring loophole that everybody in the world who would do us harm knew about,” he said.

“Besides, this legislation is good for only six months, when we will come back and revisit the issue,” he said. “I am hopeful we can get some more oversight back into the FISA law then.”

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