A License to Wiretap–Anyone

Six years ago, in the aftermath of 9/11, Congress rammed through the USA PATRIOT Act with little consideration of what that bill actually contained. Five years ago, Congress authorized a reckless and ill-advised war in Iraq. One year ago, Congress passed the deeply flawed Military Commissions Act. And late last week, a Democratic Congress passed legislation that dramatically expands the government’s ability to conduct warrantless wiretapping, which could affect innocent Americans. It is clear that many congressional Democrats have not learned from those earlier mistakes, two of which happened when Democrats controlled the Senate. Once again, Congress has buckled to pressure and intimidation by the administration.

It should go without saying, but it’s important to repeat: every member of Congress supports wiretapping terrorists. And no one thinks that the government should have to get a court order to listen to communications between suspected terrorists in foreign countries, even if those communications happen to pass through the U.S. The FISA bill Congress passed late last week was the latest example of the administration exploiting a legitimate problem to make an outrageous power grab – and unfortunately, it was also just the latest example of Congress giving in to the president’s fear-mongering. The very last thing we should be doing is granting this administration — and this Attorney General in particular — more authority to conduct wiretaps without adequate judicial supervision. It is the abuse of power by this administration that is one of the main reasons this president and attorney general should be censured.

The American people see through these tactics, and don’t buy the president’s attempts to use the threat of terrorism to get what he wants any more. Unfortunately, 16 Senate Democrats and an Independent, as well as 41 House Democrats were all too willing last week to let the president successfully employ this ruse yet again.

The bill the president signed yesterday gives free rein to the government to wiretap all the communications of anyone who happens to be outside the United States, for whatever reason, without court oversight. That includes U.S. citizens living or traveling abroad, U.S. service members in Iraq, or journalists reporting from overseas. And that includes the calls and emails of anyone outside the country to people in the U.S. This goes far, far beyond the identified problem of foreign to foreign communications that we all agree should be fixed. What little judicial review the bill does provide is essentially meaningless. The FISA court will decide only whether the government certification that it has put reasonable procedures in place to direct its surveillance against people reasonably believed to be abroad is clearly erroneous. That’s nothing more than a rubber stamp. And it provides no protection for Americans who may be calling or e-mailing friends, family or business partners overseas and who have done absolutely nothing wrong.

After all the wrong-doing by this administration, it was disheartening to see Congress bow to its demands one more time. But there is a silver lining to that dark cloud. The Democratic leadership in both the House and the Senate proposed alternative bills that addressed legitimate concerns about foreign-to-foreign communications while also doing a better job of protecting innocent Americans than what the administration was proposing. In particular, Majority Leader Reid, Intelligence Committee Chairman Rockefeller, and Armed Services Committee Chairman Levin responded to specific concerns a number of us raised about a draft Democratic proposal in the Senate. The resulting Senate Democratic bill was far from perfect, but it was vastly better than the administration’s proposal.

I am also encouraged by Speaker Nancy Pelosi’s call for fixing this flawed legislation as soon as Congress reconvenes in September. We should not delay passing a bill that will end Alberto Gonzales’s six-month, oversight-free surveillance holiday. The president will undoubtedly oppose these efforts and the Republicans in the Senate will no doubt filibuster any efforts to reinstate judicial involvement and tighten the controls around the president’s eavesdropping authorities. In the face of that expected opposition, Democrats will need to stick together this time to fix the mess that we just created. And at least some Republicans will have to be convinced to support the Constitution.

Clearly, this will be an uphill fight. But it’s a fight worth having. Our constitutional rights should not be sacrificed to scare tactics. Congress must stand up to the president. The sooner that Democrats realize that standing tough on national security doesn’t mean giving into the administration, the better off they – and the country – will be.

Russell Feingold is a Democrat from Wisconsin.


Sen. Russ Feingold, D-Wis., is a member of the Senate Foreign Relations and Intelligence Committees.