Here are some thoughts from Congressman Lamar Smith about the RESTORE Act:
“Democrats today failed to protect the American people by ignoring urgent requests from the intelligence community to update tools and modernize laws governing intelligence gathering,” stated Ranking Member Smith. “The RESTORE Act undermines our national security and increases the risk of a future attack on our country. Democrats are playing politics by claiming that this bill ‘restores’ checks and balances,” continued Smith. “But politics should never come before national security. This bill restores nothing but a legal loophole for terrorists and spies. Today’s vote comes at the expense of our national security. Contrary to Congress’s intent when FISA was originally enacted, this bill requires the government obtain a court order to conduct surveillance of overseas targets,” said Smith. “The implications of this requirement alone could be catastrophic. The RESTORE Act requires intelligence officials to obtain a court order to conduct surveillance on Osama Bin Laden, but does not require one to conduct surveillance on an illegal immigrant,” Smith added. “The bill gives terrorists overseas more rights under the law, than individuals inside the U.S. That is simply absurd. This bill does nothing to protect America, nothing to preserve civil liberties and nothing to promote national security,” concluded Smith. “So what does this bill do? It ignores 30 years of precedent in intelligence gathering and panders to special interests groups. Americans would be better served if lawmakers listened to their requests, rather than playing politics with the safety and security of our nation.”
I included the extended quote because I don’t want to be accused of cutting out some allegedly crucial point, so there it is in all its glory. Rep. Smith is a perfect example of mainstream Republican thinking these days. He shows why the party is in dire need of a philosophical makeover, extremely unpopular and seemingly prepared to go down the drain with their leader. Here are a few responses to the Congressman.
First of all, what special interest groups are being pandered to? The telecommunication companies quietly lobbying for amnesty are certainly being pandered to by Senator Jay Rockefeller and heaven knows who else. Has Congressman Smith received money from them, and if so wouldn’t his position be considered pandering to a special interest? I don’t want to get into the man’s psychology but I wouldn’t be surprised if he’s projecting his own compromised character onto those opposing him. Moreover, what special interest is pushing against amnesty? Is someone going to profit from telecom amnesty? Those with pending lawsuits may ultimately profit, so I guess the Electronic Frontier Foundation may be in for a big payday. Of course a self-described “donor-funded nonprofit” probably isn’t salivating over the huge sum this class action lawsuit could bring in. It would be a lot more probable if some large company like Google stood to profit from their distress. And actual evidence of special interest activism would be most persuasive of all. From all appearances the anti-amnesty people are motivated by Constitutional principle and a belief in the rule of law – they will see no personal profit from succeeding, which obviously can’t be said on the other side.
As for the urgent requests from the intelligence community, there is precisely one loophole in the FISA law that needs to be closed: Foreign-to-foreign communications that go through U.S. infrastructure. The temporary lifting of that requirement expires in February and it needs to be made permanent. There are no other tools that need updating or laws that need modernizing. Under FISA the President can begin wiretapping any old time he likes. He doesn’t need to get clearance from anyone first, he doesn’t need to wait for anything to get approved, he can just jump right in with both feet. Of course, he also has to get a retroactive warrant within 72 hours from the famously compliant (and secret) FISA court. In President Bush’s view any form of executive accountability is intolerable, so even setting the bar that low for him is unacceptable. But the fact is, the intelligence community is not in any way hamstrung by the legal requirements of FISA and it is dishonest to say otherwise.
The real mind bender from the Congressman is that officials would need a court order to surveil Osama bin Laden. Let’s assume Joe Spook at the NSA picks up a phone call from someone he thinks is the guy. Joe can start tapping immediately and get the warrant later. If the foreign-to-foreign loophole is closed he doesn’t even need to do that. Either way we’re listening. So what kind of scenario does this refer to? I suppose if John Lindh was in Pakistan talking to his parents in America then there would be a warrant required. If Mohammed Atta in Miami was calling Mullah Omar in Afghanistan then there may not be any warrant needed. That might satisfy the foreign-terrorists-but-not-individuals-here scenario. In no event is anyone forced to wait before acting and in any event his reasoning is extremely convoluted. That probably is not an accident – actual logic doesn’t make the case too well.
Rep. Smith’s dark warnings about undermining national security and increasing the risk of attack is simply the basest form of fearmongering. We don’t seem to be responding as viscerally to that line of propaganda these days but it still has a crude effectiveness. Sooner or later the haze of fear will lift, and when it does we will have a sober assessment of the risks we face. We will look at how to reduce or thwart them without compromising essential liberties and what to do to prepare for the worst case. We will look back at this period as some kind of national fugue state and wonder at our panicked state of mind. We will also take a hard look at the contemporary leadership, and the judgment against those who enabled the President to act with such impunity will be harsh. Rep. Smith and his colleagues are declaring with their actions that they consider themselves Republican before American. Each day they continue to do so the verdict of history will weigh heavier against them.
For more on pruning back executive power see The Pruning Shears.
