It seems the Democrats are still unwilling to take a stand that is outside the center and run with it. Case in point: the Democrats comments on the Sunday news shows. Here's John Kerry.
KERRY: And what he's [Rove's] trying to pretend is somehow Democrats don't want to eavesdrop appropriately to protect the country. That's a lie.
We're prepared to eavesdrop wherever and whenever necessary in order to make America safer. But we put a procedure in place to protect the constitutional rights of Americans. And what I believe, George, and I believe it deeply, is you can protect the United States of America without devoiding, without ignoring the Constitution of the country.
STEPHANOPOULOS: But intelligence officials, and I've spoken to some of them, say it's just not practical. You can't run this kind of a detection program through the current FISA court.
KERRY: Then come to us and tell us how you can do it so that you need some more blanket form of doing it
No, Mr. Kerry. We do not all support surveillance "whenever and wherever necessary," particularly of Americans inside America.
The Democrats' fear of being soft on terrorism has replaced the fear of being soft on crime. Karl Rove says on Friday:
"Let me be as clear as I can be: President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," Mr. Rove said. "Some important Democrats clearly disagree."
The Democrats rushed in to refute Rove. But instead of complaining about Bush's NSA program resulting in the generic, non-particularized and overbroad surveillance of ordinary Americans without probable cause, forbidden by the Fourth Amendment, they are saying Bush was right about wanting to do the surveillance, he just was wrong about the way he went about it. If he had only asked Congress to amend FISA to allow it, they would have backed him 100%.
That's how the Patriot Act got passed in 2001. It was not just a Republican bill. Congress did not even have time to read the whole bill. It was passed with virtually no oversight, no hearings and no debate. All but Senator Russ Feingold were more concerned with appearing soft on terrorism than they were with our civil liberties. They never bothered to ask themselves, will this bill make us safer, or only less free?
Now the Democrats are virtually promising a re-write of FISA. The risk is that this will only be the beginning. Rove next will bring the debate from conversations between one person outside the country and one person inside the country to conversations between two people inside the country. And then there will be a move to reduce the protections in Title III, which regulates eavesdropping on Americans in criminal investigations.
They will talk about the wall. You remember, the wall between intelligence agencies and crime agencies. They will agree it needs to come down. Prior to the 2001 Patriot Act, to get a FISA warrant, intelligence had to be the principal purpose of the surveillance request. Bush, DOJ and Ashcroft wanted to tear down the wall, and asked for a change whereby foreign intelligence gathering only had to be "a purpose" rather than the principal purpose of the surveillance. Ultimately, DOJ and Congress settled on a compromise, which was emodied in the Patriot Act: the gathering of the foreign intelligence only had to be a "significant purpose" not the principal purpose of the surveillance. Which means, the principal purpose of the surveillance can be the gathering of information for a criminal prosecution rather than for foreign intelligence.
Rove's plan was to go on the offensive and put Democrats back on the defensive. Instead of sticking to the game plan that Bush's warrantless program violated the rights of Americans, they appear ready to fold by agreeing to change FISA.
This won't end with FISA. It will move to a reassessment of Title III, the federal wiretapping statute that governs electronic surveillance in criminal cases.
Note how in his speech today, former NSA Director Michael Hayden, who was in charge of the NSA when Bush's warrantless program went into effect, said:
General Hayden defended the program's constitutionality. He said the lower, "reasonable belief" standard conformed to the wording of the Fourth Amendment, pointing out that it does not mention probable cause, but instead forbids "unreasonable" searches and seizures.
The last time I read the Fourth Amendment it said:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Bush is arguing now for a "reasonable suspicion standard" for FISA surveillance. FISA orders now require the judge to find probable cause. If the Democrats give in on that, it later will filter down to Title III. There's a difference between probable cause and reasonable suspicion. Fourth Amendment jurisprudence is filled with it. What is a "reasonable suspicion?" It's like a possibility. "Reasonable suspicion" is too close to an "inarticulate hunch" in my opinion, and when it comes to electronic surveillance and wiretapping, the most intrusive and privacy-invasive law enforcement techniques available, we shouldn't give in. There has been no showing that we will be safer with more electronic surveillance. But we will be less free.
[graphic created exclusively for TalkLeft by CL]
