Did you know that the Bush administration is pushing Congress to approve a long-term regime of governmental eavesdropping without judicial warrants on the overseas phone calls and e-mails of countless Americans?
And that the administration still insists on using interrogation techniques so coercive that human-rights groups call them torture?
And that it claims the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review?
All true. And all horrifying to the American Civil Liberties Union, international human-rights groups, and self-righteous Europeans.
It’s also true, however, that most congressional Democrats support warrantless eavesdsropping on the overseas communications of countless Americans. (See my colleague Shane Harris’s "A Court at the Crossroads," p. 62.)
It’s further true that, although both have waffled lately, Sen. Hillary Rodham Clinton and former President Clinton have supported forms of coercive interrogation that horrify human-rights groups. So will the next president, no matter who wins.
Finally, the Clinton administration itself claimed the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review. Those were refugees fleeing Haiti, not suspected terrorists. And although most Democrats now support searching judicial review of the current Guantanamo detentions, as I do, there is broad bipartisan support for holding those found to be enemy combatants even if they have committed no crimes or cannot feasibly be prosecuted.
Meanwhile, Bush partisans such as House Republican Whip Roy Blunt bash Democrats for seeking to inject the courts, for the first time in history, into the traditional executive branch prerogative of deciding when to approve electronic eavesdropping on foreigners outside the United States — for example, Qaeda suspects in Pakistan talking to would-be suicide bombers whose whereabouts are unknown.
But the Democratic bill gives the judges very little discretion to say no. And Bush now supports rather similar judicial oversight of eavesdropping policies.
In all of these cases, in my opinion, the near-consensus views of most congressional Democrats (and the Republicans) are right. Doctrinaire civil libertarians such as the ACLU are wrong to suggest that the government should never be able to "spy upon Americans without an individual warrant." (Would the ACLU bar the government from eavesdropping without a warrant on a Qaeda operative in Pakistan who calls his naturalized American cousin in Manhattan?) And so are those doctrinaire executive-power mavens who would give the government carte blanche to eavesdrop on the international phone calls and e-mails of Americans.
How can I speak of a near-consensus among most congressional Democrats and Republicans about anything, let alone issues as contentious as these? The answer is that the real policy differences between the opposing party leaders on some of these issues are so small that consensus could easily be within their grasp. The problem is that most of our leaders don’t want consensus.
So polarized have our politics become that even as the nation faces what could be "its greatest crisis since the Civil War," in the words of attorney general nominee Michael Mukasey, Republican and Democratic leaders are far more interested in strafing each other than in compromising for the sake of national unity against our common enemies.
This polarization is not merely a matter of bad leadership. Even good leaders have an uphill battle convincing voters in their own parties that bipartisan consensus is preferable to endless political combat.
In a front-page Washington Post article on October 17, for instance, Alec MacGillis explained that Sen. Barack Obama’s "summons to ‘turn the page’ past the country’s red-blue polarization is not what many Democrats want to hear after seven years of mounting anger at Bush and the Republican-dominated government." Hillary Clinton, the reporter added, "more directly exploits Democrats’ feelings of resentment." And look who’s ahead in the polls.
The current battle in Congress over proposed amendments to the Foreign Intelligence Surveillance Act of 1978 illustrates how poisonous partisanship kills potential consensus. The details are complex, but the gist is this:
FISA generally requires that surveillance of Americans and wiretaps within the United States be based on a special, secret federal court’s advance finding of individualized "probable cause" to believe that each target is a spy, terrorist, or other type of foreign agent.
But most experts, and most members of Congress, agree that galloping technology and the magnitude of the terrorist threat have made FISA obsolete in some ways. These were among the reasons for President Bush’s arguably illegal invocation of unilateral executive power to circumvent FISA from late 2001 until January 2007.
Bush has agreed to work within FISA’s bounds, at least for now, while proposing amendments. The House Judiciary Committee recently adopted its own proposal, which Bush threatens to veto. But as explained by Shane Harris, and by Brookings Institution scholar Benjamin Wittes in the October 15 New Republic Online, the competing proposals are not all that different.
What’s obsolete about FISA? First, although it was never intended to restrain executive branch eavesdropping on foreigners overseas, changing technology arguably brought many eavesdrops on "foreign-to-foreign" communications within FISA’s coverage. The reason is that many foreign-to-foreign communications now run through U.S. territory via fiber-optic cables.
In a ruling this spring, a judge on the secret FISA court created a serious impediment to warrantless collection of foreign-to-foreign communications that pass through the U.S. The administration has complained that this literal interpretation opened a huge hole in our defenses against terrorism. If so, the administration deserves most of the blame, for having spent more than five years stubbornly and (until a December 2005 New York Times expose) secretly defying FISA instead of asking Congress to update it.
Almost everybody agrees that FISA should be updated to allow warrantless taps of foreign-to-foreign communications running through the U.S. Most experts and members of Congress also agree that the dangers of Islamist terrorism call for reaffirming — many would say judiciously increasing — the government’s power to intercept communications between foreign targets and people in the U.S.
Congress fixed the foreign-to-foreign problem in August, in the hastily passed Protect America Act, which Democrats insisted be temporary because it also contained other, more controversial amendments, which Bush now seeks to make permanent.
The most important question is how to regulate wiretaps targeted at foreigners overseas that pick up their communications with Americans, or with unknown persons who just might be Americans.
House Democrats have with great fanfare rammed through the Judiciary Committee the so-called RESTORE Act, which a House Intelligence Committee press release touts as "protecting innocent Americans from warrantless eavesdropping." This is a highly misleading claim. In fact, the Democratic proposal would (and, in my view, should) give innocent Americans only marginally greater protections from warrantless eavesdropping on their overseas calls and e-mails than would the Bush-backed proposal.
Both the Democratic and Bush proposals would give the FISA court an exceedingly modest role in approving or disapproving on a programmatic basis eavesdropping operations with foreign targets that capture communications to and from Americans. So the National Security Agency could listen in on every phone call that you may have with any non-American outside the U.S. who is suspected (perhaps wrongly) of Qaeda links.
The Wittes and Harris pieces explain the details. The bottom line is that the administration is right to say that the Democratic proposal goes a bit too far toward requiring (or pretending to require) advance judicial approval of surveillance targeted on foreigners abroad.
The Democrats, on the other hand, are right to push for strict new reporting and auditing requirements and other measures making officials accountable to the FISA court, to Congress, and to the Justice Department’s inspector general for any abuses.
It would be easy to craft a reasonable compromise between the Democratic and Bush proposals. But at this writing, neither side seems interested.
Is there any hope of ever getting beyond such extreme partisan posturing? Perhaps not during the current primary season, which places such a premium on partisan zeal. But the Democratic or Republican presidential nominee who tries hardest to build bipartisan consensus will go a long way toward winning my vote and, I suspect, a lot of others.
Pledging to appoint an attorney general not of the nominee’s own party would be a good start.
Correction: I erred in my October 13 column in stating, in reliance on numerous published reports, that Justice Clarence Thomas graduated ninth in his class of more than 500 from Holy Cross. I also cited this as evidence that he was qualified for any law school in the country quite apart from his race. Justice Thomas promptly sent word to me that he recalls ranking in the top 9 percent of his class, not ninth. I regret the error.