Resisting Revisionism

The consistently good Glenn Greenwald takes on the revisionists; those who would have us believe that the Cold War never existed, that those quaint, obsolete FISA laws were intended only for "peacetime" and that the President had to break the law... to save us from the evil law-breakers. However, Glenn, a member of the evidence-based community, provides some interesting and illuminating evidence that puts the lie to these revisionist claims. We give the wingnuts a free pass when we allow them make up stuff without calling them on it. Glenn does just that here:

Section 1811 of FISA happens to be entitled "Authorization during time of war," and it expressly does what Captain Ed and so many other Bush followers falsely claim it does not do – namely, regulate eavesdropping during times of war:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

How can someone argue -- as so many Bush followers do -- that FISA was intended to regulate only peacetime surveillance when there is a clause in that law expressly regulating surveillance during times of war? On its face, FISA is a law that governs how the Executive can eavesdrop on Americans both in times of peace and in times of war.

Moreover, contrary to the notion that we were concerned about unchecked eavesdropping on Americans only during peacetime, it is worth pointing out that there was a war during the Nixon Administration. It was called the Vietnam War. Many of the documented eavesdropping abuses which led to FISA occurred during this war. As a country, we enacted FISA precisely because we wanted to make it a criminal offense for the Federal Government to eavsedrop on Americans without judicial oversight -- whether during peacetime or war. The law could not be any clearer about that. To claim that FISA grew out of concerns about eavesdropping abuses only during peacetime is inarguably false.

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This is an oft-overlooked point that is vitally important. The Soviet Union was an infinitely stronger, more formidable, more sophisticated enemy with far vaster resources than Al Qaeda could dream of possessing. And Communists, we were always told, employed their own deadly version of "sleeper cells" by systematically implanting foreign agents and even recruiting American citizens on U.S. soil to work on their behalf, including infiltrating the highest levels of the U.S. Government with their agents and sympathizers.

And yet, in the midst of all of these internal and external threats, the Congress enacted and the President signed into a law a statute permitting eavesdropping for foreign intelligence purposes only with judicial oversight. And more generally, during the four decades during which America fought the "Cold War" -- a war which was always depicted by both parties as posing an existential threat to our country -- no President ever seized, nor did Americans ever bequeath, the power to act contrary to Congressional laws and outside of the parameters of judicial "interference."

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FISA was first enacted in 1978 but was amended and thereby re-affirmed in the immediate aftermath of 9/11, when the Administration requested changes to the law which Congress then made, causing the President to praise FISA this way on October 27, 2001:

The new law [amending FISA] recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations--and also to detect them before they strike. . . .

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

After 9/11, in the midst of our war against Islamic terrorism, the President himself argued that FISA is a modern and sufficient tool to enable us to conduct surveillance on the modern terrorist. Shouldn't Bush followers be precluded from claiming that FISA is obsolete and incapable of enabling surveillance of modern terrorist communications when the President said exactly the opposite?