On August 5, President George W. Bush signed into law legislation that amended the Foreign Intelligence Surveillance Act of 1978 (FISA). This new legislation authorises the electronic surveillance of international telephone conversations and e-mails, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is “directed at a person reasonably believed to be located outside of the United States.”
The law requires neither a search warrant nor probable cause to believe that the target of the investigation is a terrorist or even an associate of terrorists. In effect, this legislation ratifies the secret surveillance programme that Mr Bush unlawfully implemented in 2002. It could not have been enacted without the support of a significant number of Democratic senators and congressman. Many of the Democrats who voted for the law did so despite their prior criticisms of the Bush surveillance programme, despite the consensus view among legal scholars that that programme was unlawful and despite a federal court ruling declaring it so. How, then, could these "liberty-loving" Democrats support this legislation?
Most of the argument about the legality of the secret Bush programme focused on the fact that it violated FISA. Amending FISA makes that objection disappear. Of course, this does not excuse the prior legal violation, but it does now make lawful what previously was prohibited.
The real reason these Democrats supported the legislation, however, is that the president outmanoeuvred them politically. In effect, Mr Bush cast the issue as follows: “If you deny me the authority to use this form of surveillance and there is then an attack on the United States, it is on your heads.” The Democrats caved in because they were afraid to defend individual liberties in the face of the president’s browbeating. They should be ashamed.
What does this tell us about the state of civil liberties in the US? Not as much as you might think. The fact is that fear-mongering has played a critical role in every major wartime episode in American history. In 1798, the Federalists used a largely trumped-up threat of French invasion to enact the Sedition Act of 1798, which made it a crime for any person to criticise the president, the Congress, or the government. During the civil war, President Lincoln suspended the writ of habeas corpus on eight separate occasions and Congress rushed headlong to approved his actions.
During the first world war, President Wilson stampeded Congress into enacting the Sedition Act of1918, which made it a crime for any person to criticise the war, the draft, the military, the flag, the uniform, or the government. During the second world war, Congress blithely ratified President Roosevelt’s internment of almost 120,000 individuals of Japanese descent, two-thirds of whom were American citizens. And at the height of the McCarthy era during the cold war, a frantic Congress hastily enacted the McCarran Act of 1950, one of the most grievous assaults on freedom of speech and association in American history.
So, we should consider recent events in context. The legislation amending FISA is unwarranted, reckless and possibly unconstitutional. Nonetheless, the overall state of civil liberties in the US, viewed in historical perspective, is surprisingly strong. There are no internment camps for American Muslims, no suspensions of habeas corpus for American citizens, no laws prohibiting criticism of the war in Iraq. This might not seem like much, but in light of past episodes, the intrusions on civil liberties since 9/11 have been relatively modest.
This is so for two reasons: first, Americans have come to value civil liberties as part of their romance with America. Although we are still too willing to make unwise compromises of individual liberties in order to protect (or try to protect) national security, we are much more sensitive to these issues than we have ever been.
Second, groups like the American Civil Liberties Union have played acritical role in setting the terms of the debate. By objecting strenuously even to relatively modest limitations, they have prevented the government from proposing more drastic restrictions. Because we are debating whether the government can intercept international telephone calls, we do not have to debate whether it can prohibit Americans from criticising the president. Where battle lines are drawn is critical.
This post first appeared as an op-ed in the Financial Times.