What a Difference Two Weeks Make


Yesterday the House and Senate both approved a 15-day extension of the Protect America Act, which was scheduled to expire on Friday, to allow time for further debate, mainly about whether to grant retroactive immunity to the telecommunications carriers that assisted the NSA with its illegal surveillance of international communications involving people in the U.S. The White House, after threatening to veto a one-month extension of the law, which amends the Foreign Intelligence Surveillance Act (FISA), has indicated it will go along with the shorter extension. This is the latest in a series of Bush administration reversals and self-contradictions regarding FISA.

After The New York Times revealed the existence of the NSA's warrantless surveillance program in December 2005, the administration said the program was perfectly legal. It also said it had to break the law, and continue breaking it for years, because complying with FISA would have made it impossible to stop terrorist attacks and because Congress would not have agreed to change the law (although it already had done so on more than one occasion). Then, in January 2007, the administration announced that it had found a way to do the impossible: comply with FISA and still conduct the surveillance necessary to fight terrorism. Later that year, it said that what had been impossible and then briefly possible was now impossible again, supposedly because of a secret court ruling finding that FISA requires a warrant to monitor foreign-to-foreign telephone calls and email messages if they happen to pass through U.S. switches, routers, or servers.

Last summer, when the administration asked Congress to fix FISA (something it supposedly had assumed Congress would never do), the bill it demanded not only addressed this technical problem; it also allowed warrantless surveillance of communications between people in the U.S. and people in other countries, as long as the people in foreign countries were said to be the targets. That authority, the administration insisted, was absolutely essential to national security, and even pausing to debate the issue meant that "Americans are going to die." Every day that U.S. intelligence agencies went without this power was a day on which Americans were needlessly exposed to the risk of a catastrophic terrorist attack. Terrified at that prospect (or terrified at being portrayed as insufficiently concerned about that prospect), Congress complied, but it put a six-month limit on the Protect America Act so the issue could be revisited in a less panicky climate.

With the expiration date approaching, the Democrats proposed another temporary extension, but the president said he'd veto any bill that did not make the FISA amendments permanent and add retroactive immunity for the telecommunications companies that had collaborated in the administration's end run around the statute. So even though the administration portrayed Congress as unforgivably reckless for taking time to consider whether the new surveillance powers were necessary and appropriate, Bush was willing to let them lapse just to show how serious he was about protecting us from terrorism. But now he has changed his mind again, seeing the merits of a temporary extension. If the president and his men can't even get their public story about warrantless surveillance straight, how can we trust them to secretly exercise the unilateral powers they are seeking?