Tempus Fugit

FISA amendments that Bush praised and signed in 2001 now considered inadequate

Bush in October, 2001:

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we’ll be able to better meet the technological challenges posed by this proliferation of communications technology.

He was commenting on amendments made to FISA which modernized the government’s ability to intercept communications of our nation’s enemies. Sounds good, right?

A few days later, Bush underlined the importance of these changes, and the importance of following them so as not to violate civil liberties:

These measures were enacted with broad support in both parties. They reflect a firm resolve to uphold and respect the civil liberties guaranteed by the Constitution, while dealing swiftly and severely with terrorists. Now comes the duty of carrying them out. And I can assure all Americans that these important new statutes will be enforced to the full.

In his radio address, he unequivocally stated that FISA had been sufficiently modernized:

Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

So, all was good, and the administration had everything it needed to listen in to terrorists, so they should be happy. Right? Well… not quite.

A few days after that, Bush told the NSA to ignore FISA, and to do surveillance without court oversight. Again, look at what Bush said:

Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

It wasn’t that FISA was holding them back from listening in. It had nothing to do with surveillance. It was merely a matter of avoiding accountability.

Now, fast forward almost 5 years, and see what Bush is saying today:

When FISA was passed in 1978, there was no widely accessible Internet, and almost all calls were made on fixed landlines. Since then, the nature of communications has changed, quite dramatically. The terrorists who want to harm America can now buy disposable cell phones, and open anonymous e-mail addresses. Our laws need to change to take these changes into account.

Wait a second… the laws did change. They changed five years ago, in response to 9/11. Let’s run through the series of events:

• September, 2001 — Terrorists attack, nation realizes we are facing a new kind of enemy
• October, 2001 — FISA is amended, modernizing the law and allowing the government to listen in to terrorists’ communications effectively
• October, 2001 — Bush speaks favorably about the changes, and assures the nation that the law will be followed
• October, 2001 — Bush tells the NSA to ignore the law, and conduct warrantless surveillance, in violation of the law he just had amended only days before
• December, 2005 — Government leakers spill the story about the extra-FISA surveillance
• December, 2005 — Alberto Gonzales in a White House press conference confirms that Bush told the NSA to do wiretaps in violation of FISA
• September, 2006 — Bush claims that FISA (for which he signed modernizing amendments in 2001) is outdated and insufficient.

Now, I don’t have the best memory in the world, but I’m reasonably certain that by 2001 we had done away with rotary telephones and had embraced e-mail, the Internet and cellular phones. What has changed in 5 years that has rendered the law antiquated?

The only thing that has really changed is that the public is aware that Bush told the NSA to violate FISA. Bush can spin this favorably with a lot of people if he continues to claim that he violated FISA because FISA was insufficiently modern. If he admits that he signed modernizing amendments and explicitly declared FISA to be sufficiently modern before telling the NSA to violate the law, he might lose that support. When people realize that he broke the law not to keep us safe, but to avoid accountability, their reaction will be justifiably different.

Bush now wants his accountability avoidance to be legalized. He wants Congress to explicitly say what they didn’t say (explicitly or implicitly) in the Authorization for the Use of Military Force — that the President should be able to authorize spying on communications without having to inform a court.

I vote that we take a page out of conservatives’ illegal immigration playbook and say that he has to obey our current laws before we’ll change them to benefit him.

Hat tips toGlenn Greenwald and The Anonymous Liberal for the relevant Bush quotes.