But if our nation were to suddenly become vulnerable, it would not be because we don't have sufficient domestic surveillance powers. It would be because the Bush administration has done too little to defeat al-Qaeda, which has reconstituted itself in Pakistan and gained strength throughout the world. Many of our intelligence assets are being used to fight in Iraq instead of taking on Osama bin Laden and the al-Qaeda organization that attacked us on Sept. 11 and that wants to attack us again.
The words are from an op ed in today's Washington Post entitled, as is this diary, Scare Tactics and Our Surveillance Bill. Given its four authors - Jay Rockefellar, Pat Leahy, Silvestre Reyes, and John Conyers - are the chairs in the Senate and the House of the committees on Intelligence and the Judiciary, it now seems as if the Democrats in Congress have decided once and for all to stand up to the administration's demagoguery on the issue of gathering intelligence.
I will examine the op ed and offer a very few comments of my own on this important topic.
The authors make clear their intent in two brief opening paragraphs:
Nothing is more important to the American people than our safety and our freedom. As the chairmen of the House and Senate intelligence and judiciary committees, we have an enormous responsibility to protect both.
Unfortunately, instead of working with Congress to achieve the best policies to keep our country safe, once again President Bush has resorted to scare tactics and political games.
once again President Bush has resorted to scare tactics and political games. These lines are important, and need to be hammered home to the press and the American public, because this will be a fault line in the general election. This marker needs to be established now, and repeated constantly. Given the roles of the four men, the op ed seems to represent an official position of the Democrats as a whole.
The authors acknowledge differences in the recent reauthorization process, particularly over the question of retroactive immunity. But they absolutely agree on several points:
First, our country did not "go dark" on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush's overheated rhetoric on this issue, the government's orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately.
They quote Assistant Attorney General Kenneth Wainstein as acknowledging this to while speaking to reporters, and they state as bluntly as possible the clearest evidence that there is no immediate risk:
If President Bush truly believed that the expiration of the Protect America Act caused a danger, he would not have refused our offer of an extension.
The authors point out that even if a new and previously unknown terrorist organization were to arise, FISA allows for immediate wiretapping providing a warrant - rarely refused by the FISA court, is obtained within three days. And they note that in the disruption this past year of a terrorist plot by our German allies we provided the necessary information while relying upon the authority under FISA. They then ask the key question:
So what's behind the president's "sky is falling" rhetoric?
The four men answer in with two key paragraphs, the second being that with which I began this diary, and the first:
It is clear that he and his Republican allies, desperate to distract attention from the economy and other policy failures, are trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack.
Politics, sheer politics. Those who have followed the issue with any attention at all already know this. And the four make clear that they will not "buy" the president's attempt to change the topic on the failures of his administration to proerly address the issue of Al Qaeda and instead diverting our resources to Iraq. This is important, because it is a key part of undercutting the administration case for the continuation of its efforts in Iraq that those of the mindset of John McCain can see lasting up to a century.
I want to focus on what is probably the key paragraph for many who will read this diary, and I am going to take the liberty as I do so of putting one word in bold:
We are motivated to pass legislation governing surveillance because we believe this activity must be carefully regulated to protect Americans' constitutional rights. Companies that provide lawful assistance to the government in surveillance activities should be legally protected for doing so.
That word in bold, lawful, is perhaps the most contentious, and is where the greatest conflict may exist between the House and the Senate versions of the bill. Are the companies acting lawfully, and hence are entitled to protection, when a request is received from government authorities outside of the statutory framework established by the Congress to deal with such situations? This has been a key area of conflict between the committees chaired by Rockefellar, who has been inclined to grant such protection, and Leahy, whose committee put forth a version of the bill that did not include immunity. On this point the amendment proposed by among others Jim Webb where the government would assume the legal responsibility for any damages - and thus acknowledge the possibility that people's rights were violated - might well come into play as the conference committee seeks to resolve differences between the versions of reauthorization put forth by the two chambers of Congress.
The four men seek to draft something that will have broad support in Congress and of the American people, as well as addressing the legitimate need for appropriate tools by the American people.
The final paragraph is something upon which I wish to focus briefly:
If the president thinks he can use this as a wedge issue to divide Democrats, he is wrong. We are united in our determination to produce responsible legislation that will protect America and protect our Constitution.
I would hope the Democrats in the House and the Senate, from Intelligence and Judiciary committees, can remain united. To ensure that happens, it would be quite helpful were both of our remaining candidates for the presidential nomination of the Democratic party to sign on to this statement. It is an issue that I hope will be raised at the debate tomorrow if necessary, although it would be far better were both Senators, Clinton and Obama, to issue statements agreeing with the op ed piece - that would make clear that on this issue Democrats do speak with one voice, and make it far more difficult for the administration to attempt to use the issue to divide the Democrats and thus force through something that might further gut our constitutional protections.
It is likely given the venue in which this piece ran that key figures in both campaigns are already aware of the statement by the four men. It cannot hurt to pressure both campaigns - and any members of the House and Senate with whom any of us have ongoing contact - to sign on to this statement. We do not yet know what form the final legislation might take, and we may not be completely happy about it. But for now the key Democrats in the process have been able to find common ground, and on that they should be supported.
Peace.