Republican Bruce Fein on the failure of both parties to stop the government from spying on its citizens
VOICE-OVER: In President Bush’s State of the Union Address delivered January 28, 2008, the president calls for the Congress to pass the Protect America bill that would amend the Foreign Intelligence Surveillance Act (FISA) to allow intelligence agencies in certain conditions to conduct surveillance without a warrant.
GEORGE W. BUSH, US PRESIDENT: To protect America, we need to know who the terrorists are talking to, what they are saying, and what they’re planning. Last year, Congress passed legislation to help us do that. Unfortunately, Congress set the legislation to expire on February 1. That means if you don’t act by Friday, our ability to track terrorist threats would be weakened, and our citizens will be in greater danger. Congress must ensure the flow of vital intelligence is not disrupted.
To discuss the background of FISA and the implications of the Protect America bill, we spoke with Bruce Fein, founder of American Freedom Agenda, which works to restore constitutional checks and balances, and a former member of the US Justice Department under President Reagan.
BRUCE FEIN, FOUNDER, AMERICAN FREEDOM AGENDA: The Senate Democrats, as well as Republicans, because this is a matter of constitutional law and the way in which we view ourselves as a country, should be insisting that the president comply with the initial FISA statute. No blanket warrants. Go back to where it was for over 20 years without difficulty, which required a judge to find probable cause to believe that the target of electronic surveillance had a reasonable expectation of privacy because they’re a US citizen or otherwise, and thus obtain a warrant before electronic surveillance began. Now, let’s remember that this initial statute was not burdensome. Twenty thousand warrants had been given in about 20,004 cases, i.e., four refusals in over two decades. Moreover, the statute did not apply, generally, when you were spying targeting an alien, which would be members of al-Qaeda who are abroad. It was a very successful balance between the need to gather foreign intelligence and the historical abuses that were quite frightening that occurred when the president had no checks on his ability to gather information and spy on citizens and non-citizens alike. For example, Congress had revealed during hearings in the 1970s that the CIA had opened mail illegally for 30 years, they had intercepted international telegrams illegally for 30 years—this was both the CIA and the FBI—the National Security Agency had been misused. And that’s to be expected: just like to a hammer everything looks like a nail, to a spy everyone looks like a traitor. And this statute had worked successfully for over two decades. No president claimed it was compromising his ability to gather foreign intelligence. And Congress should be insisting that we return to that very sensitive but imperative balance to protect our rights to privacy. The administration has come up with no evidence—and I underscore “none”—since the years that have elapsed since 9/11 to suggest that this statute as initially conceived was too difficult to comply with in order to thwart al-Qaeda and other international terrorists. It also speaks volumes to me that the 9/11 Commission, which did the most thorough analysis of the causes of 9/11 did not—and I underscore “did not”—recommend that the FISA law be altered in any way. So the Democrats need to get back out of the fear that if they refuse any request of the administration, they’ll be called weak on terrorism, and to lose, you know, their election or to give their opponents some kind of advantage. This is not a question of being weak on terrorism; it’s being aggressive on terrorism, but being aggressive with checks and balances so we ensure we don’t destroy the liberties we’re fighting for. Remember the law had always had two special features to address the problem of speed. One, after a time of war, there was a 15-day window where the president need not get a warrant in order to conduct electronic surveillance. Secondly, there’s also a provision in the law that for 72 hours the president can initiate electronic surveillance without a warrant and only get a warrant after the fact. And if 72 hours isn’t long enough, there really has not been much opposition to extending that time period for an additional day or two, or even seven days. But that’s not what this administration is about. It’s seeking to dismantle virtually the entire regime of judicial review of the administration’s decisions to spy on anyone at any time and anywhere, and in order to, say, build this huge database, and also to say to the Congress and the American people, “We know information you don’t know. You don’t question our policies, ’cause we’re smarter than you. You don’t know what the situation is in Iraq or in Afghanistan or Iran and North Korea, and therefore shut up. Don’t get involved in this debate, ’cause we have all this secret information.” I don’t know of any instance in the history of the presidency where one president comes in and renounces power that was claimed by the predecessor president. Remember that when you create a crisis atmosphere, when you inflate dangers to the level of war, you increase executive power, because it’s in war where the money goes to the executive, the power to appoint military generals goes to the executive, secrecy, the emergency authorities go to the executive. And there’s a natural inclination, which is healthy, for a country to rally behind a president in times of war. And that’s why all presidents will be inclined to overstate and exaggerate fears and insist on very, very strong and muscular powers, because that gives them more political power. We have someone who took impeachment off the table in November of 2006. How can you take impeachment off the table? It’s like writing the First Amendment out of the Constitution. Impeachment’s in Article 2, Section 4. And, of course, in my judgment, the reason why she has been so reluctant to move forward and basically telling Chairman John Conyers of the House Judiciary Committee, “You open an impeachment inquiry and I’m going to fire you as chairman” like she did Jane Harmon on the House Intelligence Committee, is because she herself is compromised. She was alerted early on to the waterboarding, to the illegal electronic surveillance, and other sorts of mischief, and she said nothing! And if there was a full-fledged inquiry into these impeachable offenses, she would be shown to be guilty in the sense that Edmund Burke said that all that’s necessary for evil to triumph is for good men and women to do nothing. And I believe that she is creating in collusion, so to speak, with Bush, you know, the greatest usurpation of executive power in the history of the United States. And I find it quite deplorable. And I’ve spoken several times directly and written about this particular problem, that Nancy Pelosi is sacrificing congressional authority to save herself. It’s as simple as that. Otherwise, how could you be against at least opening an inquiry to these usurpations of power? Let me just give you one example. With regard to the Nixon impeachment—and I was here at the time—I’ve been here 40 years—one of the articles of impeachment voted against Richard Nixon was that he refused to comply with subpoenas for information, because that would cripple the ability for a Congress to oversee and indeed gather information about impeachable offenses if the president [were to] withhold the decisive information. Now, let’s take George Bush. It’s known that he has told people like Karl Rove, Harriet Miers, Josh Bolton, chief officials in the White House, they can’t even testify before Congress on something as innocuous as firing US attorneys. Now, if that was an impeachable offense for Nixon, why is Nancy Pelosi quiet and saying, “Well, that’s just too bad?” They haven’t even got a vote on contempt of Congress for these sneering at the oversight power. And the only explanation in my judgment is Nancy Pelosi knows she would be brought into the embarrassment, and she needs to save her skin. That in my judgment is repugnant. After all, her oath is to the Constitution of the United States, which includes the impeachment clause, all of it. And it’s not what she thinks is good for the Democratic Party, it’s not what she thinks good is for Nancy Pelosi. She takes that oath, says, “I take an oath to swear to defend and uphold the Constitution.” And in my judgment she is violating that oath by her unwillingness, indeed stubbornness, about opening up any kind of impeachment inquiry.
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