12/18/2005 Adminstration PR campaign to reauthorize PATRIOT Act

The Law Loft
Sunday, December 18, 2005

BUSH TEAM LAUNCHES MULTIFRONT MEDIA ATTACK
TO REGAIN SUPPORT FOR PATRIOT REAUTHORIZATION

From Saturday through Sunday night prime time:

Using the tools uniquely in the command of the White House and an array of Sunday political talk shows, the Bush administration launched the predicted damage control and media counter-attack to overcome the damage done by the New York Times revelation of secret extra-judicial presidential spy orders inside the USA and to regain public and thus Congressional support for the Conference Report to reauthorize the Patriot Act.

First came the Bush radio address to the nation on Saturday morning during which the President admitted that he had authorized the National Security Agency to engage in domestic eavesdropping without court order claiming that his actions were 'consistent with U.S. law and the Constitution.'

Next came a series of talk show interviews of US Secretary of State Condoleezza Rice in which she outlined the administration's justification in a slightly more sophisticated form while remaining remarkably vague on legal details, 'I'm not a lawyer,' the Secretary of State said over and over again.

And finally on Sunday night George Bush delivered a televised address to the American people from the Oval Office in which he referred again lightly and obliquely to the domestic spying activity saying: "My most solemn responsibility is the security of our citizens," and "None of these decisions has been taken lightly."

Is the sales pitch working?

It's probably too soon to tell but so far it seems not. Both Democratic and Republican Senators continued their call on the political talk show circuit for a Congressional hearing investigating the legality of the president's conduct. Although some threatened hearings into the leaks that led to the New York Times article that started the fray, most whether Democrat or Republican seemed at minimum very uncomfortable with the President's conduct.

A CNN non-scientific web poll showed only 9% of respondents favored making the Patriot Act permanent while an overwhelming 91% did not.

Meanwhile behind the scenes:

It remains clear that behind the scenes bargaining over each section of the Conference Report that would reauthorize the Patriot Act is ongoing at this time as both sides struggle to try to reach consensus before the end of this session of Congress.

What can we do now?

Make sure Senators understand that we are not buying into the administrations excuses for authorizing an international spy agency, the NSA, to engage in domestic eavesdrops without a court order or court supervision. The public relations theory that the Bush administration seems to be following is get the poor, dumb fuzzy thinking public to think that the White House had to spy in violation of law to protect them and Congress won’t dare act against the White House and support for stopping the Conference Report to reauthorize the Patriot Act will steadily erode.

We can best refute the Bush p/r campaign by understanding the Bush argument and then sending letters to both our Senators and Representatives that indicate that what Bush is selling, we are not buying. You would be amazed how stupid they think you are. The slightest sign of intellectual activity and comprehension will break the confidence of the hardest member of Congress whether he or she admits it or not.

So, here's the argument and the rebuttal.

Bush's P/R Argument: Main Points and Rebuttal:

My main duty as president is to protect the security of the American people

True, it's a primary duty. But the 9/11 Commission recently gave the administration an "F" on national security preparedness where it counts. Even Senator Lindsey Graham, one of the President's supporters, said today "because you are at war doesn't justify doing away with the process that makes you free."

The President acted within his powers as commander-in-chief and under statutory authority

Where is the proof? Dr. Rice kept saying the president had legal and constitutional authority to engage in secret eavesdropping without a court order or judicial supervision but provided not a single citation to back that assertion. Most members of Congress appear to think that the President violated the express provisions of the Foreign Intelligence Surveillance Act and that his inherent powers as commander-in-chief don't stretch that far.

The President had to act to prevent the USA from being a safe haven for terrorist communications.

This is balderdash. The 1978 FISA statute provides both a means to obtain a secret court order to engage in domestic eavesdropping and even an emergency right to eavesdrop without court order provided extra-judicial eavesdropping is be followed by communication to the FISA court and secret court supervision thereafter.

The president acted to prevent the wall between intelligence and law enforcement from obstructing preventive acts necessary for our security.

Expert testimony during the 9/11 hearings stated that the "wall", the idea of an insurmountable wall between intelligence and law enforcement, was a misinterpretation of law. In any case the FISA court has since ruled that the wall did not exist as a matter of law even before the Patriot Act expressly tried to eliminate it. This argument, however serviceable it might have been on 9/11/01, hardly justifies extra judicial eavesdropping after the Patriot Act passed nor continued extra judicial eavesdropping today which the President admitted on Saturday is still ongoing.

The present situation is nothing like the past. Nowadays we are in a time when if we allow the USA to be a safe haven for terrorist communications, if somebody commits a crime, thousands will die.

Throughout this argument runs the idea that preventive action of a draconian nature must be taken. This is a newer version of the old Nazi era argument for Schutzhaft, preventive detention. It was a dangerous and bogus argument in the 1930s and 40s when it was used to justify the incarceration of people who had never committed any crime, and the idea remains just as dangerous and bogus today. The historical argument - that we have never faced times like these- doesn"t work either. It has never been ok to permit terrorists or anyone else to explode a weapon of mass destruction on our shores. For 40 years, American lived under the older freer legal system and yet managed to avoid being blown up by nuclear weapons by either the Soviets or through the actions of third state actors who tried to get the two superpowers to blow one another up by mistake. In many ways the present is exactly like the past, only the name of the enemy has changed.

Yet another fundamental problem with the Bush argument is that it assumes wrongly that no crime is committed until a terrorist act has been fully completed. Our legal system had never said wait until the terrorist blows someone up, then take action. In fact the notion of terrorism in progress or preparation is a well and long recognized conspiracy crime in the American legal system. If not a single law had been changed after 9/11, it would still be a crime of conspiracy to take any steps to plot or prepare to commit a terrorist act. And, court orders authorizing a wire tap could issue. The Bush administration does not now and never had to break violate the 4th Amendment's Right of Privacy, bypass the court system or inflate the powers of the Presidency to keep us safe from terrorism.