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Republicans pushed 'bogus' terror threat to expand FISA, lawmaker says
Nick Juliano
Published: Wednesday September 19, 2007


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Republicans and the Bush administration used a 'bogus' terror threat that raised specific fears of an attack on the Capitol to scare lawmakers into adopting a dramatic temporary expansion of the government's spy powers last month, a former top intelligence committee Democrat said Wednesday.

Congress agreed to give President Bush and the nation's intelligence agencies extra authority to spy on Americans just hours before lawmakers left for a month-long recess in August. In the legislative session's final week, news emerged of an impending plot by foreign terrorists to attack the US Capitol, and Republicans pointed to the reports as justification to expand the administration's powers.

"That specific intelligence claim, it turned out, was bogus; the intelligence agencies knew that," Rep. Jane Harman (D-CA) said at a forum on the Foreign Intelligence Surveillance Act organized by the Center for American Progress in Washington. However, lawmakers did not learn of the claim's unreliability until "the day" they approved the FISA expansion, she said.

Harman was among Congress's "Gang of Eight" in 2002 when she served as ranking member of the House Intelligence Committee. The gang was briefed in 2002 on President Bush's warrantless wiretapping program initiated after 9/11 before the New York Times revealed its existence in December 2005. The group comprises the chairs and ranking members of the House and Senate intelligence committees plus each party's leader in both parties.

Congress's ongoing debate over how to make permanent needed modifications to FISA without trampling Americans' civil liberties was the subject of Wednesday's forum. Later that afternoon, Bush toured the National Security Agency's headquarters outside Washington and urged lawmakers to expand his authority under FISA not restrict it.

Harman, who now chairs the Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment, accused the Bush administration of pursuing a "Rovian strategy of using terrorism as a wedge issue" in seeking to expand the president's power rather than focusing on the needs of foreign surveillance.

Director of National Intelligence Mike McConnell has been making the rounds on Capitol Hill to push lawmakers not only to make permanent the provisions of the expansion, known as the Protect America Act, but to further limit redress against civil liberties violations by providing immunity to the telecommunications companies that facilitated the warrantless wiretapping program.

Harman said the administration's "trust me theory" that would diminish oversight of intelligence activities was not acceptable. Democrats and Republicans in Congress, she said, are committed to ensuring the nation's spy agencies would be able to effectively gather intelligence from foreign suspects as long as they had assurances that Americans' rights are protected.

"There is a deal to be made if this administration is serious," she said. "If it just wants this as a wedge issue, then I hope Congress will fight this with every breath that we have."

Appearing alongside Harman at Wednesday's forum was Bruce Fein, a constitutional lawyer and former Reagan administration official, who has emerged as a harsh critic of President Bush. Fein noted that FISA grew out of concerns over Nixon administration scandals and revelations that foreign intelligence resources were being abused.

"Unchecked spying invariably leads to abuses in collection for political purposes, not national security purposes," Fein said. The danger inherent in giving Bush -- or any president -- authority to spy on Americans without oversight is that "it will be hijacked to advance a political agenda."

Fein invoked the Founding Fathers' warnings against concentration of power in government, and he compared the president's arguments about how 9/11 "changed everything" to justify expanded authority to the government's decision to lock up Japanese Americans who had committed no crimes during World War II.

The Bush administration is operating on the belief that it is "infallible," Fein said, and the public and Congress have a right to know which activities the administration authorized so it can avoid an unconstitutional power grab.

"That's exactly what the Founding Fathers feared: hubris, a goal to dominate and manipulate," he said.

Fein also argued that the authority the administration is requesting would give them power beyond simply intercepting foreign-based communications, which the administration has offered as the necessity to update the law. He argued the president could authorize warrantless searches of people's homes or mail if it was justified as part of the "war on terror."

A third panelist, Greg Nojeim a senior counsel to the Center for Democracy and Technology, invoked home searches as a metaphor to explain abuses that could exist even as the administration has promised to "minimize" the use of data on Americans gathered by NSA spies.

In his testimony Tuesday, McConnell acknowledged that NSA wiretaps on people abroad sometimes will pick up Americans conversatons when the foreign targets call into the US. The use of information intercepted in this way is a crux of the debate over FISA.

To say the information is "minimized," is akin to police breaking into an individuals home to search it and remove evidence without a warrant but then say no civil liberties were violated "as long as when they got back to the police station they threw it out," Nojeim said.

He noted that the NSA collects and analyzes information from domestic phone calls before deciding whether to pursue a warrant for further surveillance, and he noted reports that the data was sometimes shared with other agencies. So to say it has been "minimized" is not accurate.

"Words don't have their normal meaning," he said. "Up is down, black is white ... John Ashcroft is a civil libertarian, this is the world of FISA."