The Bush Administration has successfully forced on Congress a law that largely authorizes open-ended surveillance of Americans’ overseas phone calls and e-mails. How did they do it?
By Aziz Huq, TheNation.com.
After enduring weeks of blistering criticism for Attorney General Alberto Gonzales’s inartful elisions about the National Security Agency (NSA) spying activities, the Bush Administration has successfully forced on Congress a law that largely authorizes open-ended surveillance of Americans’ overseas phone calls and e-mails. How did they do it?
The Protect America Act of 2007 — the title alone ought to be warning that unsavory motives are at work — is the most recent example of the national security waltz, a three-step Administration maneuver for taking defeat and turning it into victory.
The waltz starts with a defeat in the courts for Administration actions — for example, the Supreme Court’s extension of the rule of law to the US military prison at Guantánamo in the 2004 case of Rasul v. Bush, or its striking down of the military commissions in 2006 in Hamdan v. Rumsfeld. The second step does not follow immediately. Rather, some months later, the Administration suddenly announces that the ruling has created a security crisis and cries out for urgent remedial legislation. Then (and here’s the coup de grâce) the Administration rams legislation through Congress — the Detainee Treatment Act of 2005, or the Military Commissions Act of 2006 — that not only undoes the good court decision but also inflicts substantial damage to the infrastructure of accountability.
This time, the sordid dance began with a bad ruling for the government, a ruling that demands some context to be understood.In January the Administration suddenly announced that it was submitting the secretive NSA “terrorist surveillance program” to the Foreign Intelligence Surveillance Court, or FISC, a closed judicial process established by the 1978 FISA law to handle search warrants for foreign intelligence purposes. The move came as federal appellate courts in Ohio and California seemed on the cusp of ruling the NSA’s domestic surveillance efforts illegal as violations of FISA and possibly the Fourth Amendment. It seemed a way to forestall defeat in those cases.
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