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Protect America by Passing Protections

Caroline Fredrickson,
Washington Legislative Office
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January 16, 2008

As of late, there’s been some discussion on DailyKos and other blogs regarding an extension of the Protect America Act (PAA), since it expires on February 1 and the Senate has yet to return, debate, vote and conference with the House on the legislation. Here are the ACLU’s thoughts.

Frankly, if Congress had any real spine on this issue it wouldn’t even be talking about an extension – it would let the PAA expire. But since somehow the President’s talking points have more influence with members than the Constitution, they need to buckle down and pass a law that reins in the broad spying powers of the PAA and doesn’t let the telecoms off the hook for their role in domestic spying.

A rush to authorize an extension is troubling, as an extension of the PAA means the continuation of broad, unconstitutional and government-sponsored spying. And, for example, if there is an agreement on a one-year extension, think about where we’ll be then. One year from now, we’ll be within the first 30 days of a new administration. Democrat or Republican, what new president will want to take this on as task number-one? We can’t kick this can down the road. The bottom line is that any extension at all is bad for Americans’ privacy rights – there is no way around that. It’s far better to force the fight now, while attention is focused on the two key issues under debate: surveillance and immunity.

Here’s another thing – if Congress votes for any kind of extension, it is once again voting for the PAA and once again, essentially, putting its stamp of approval on a bill they vowed to fix. Then, with many members chalking up two “yeas” on the PAA, how motivated do you think they’ll be to fix it when the next expiration date rolls around?

If the PAA extension is the path that Congress takes, the ACLU will be once again forced to organize against it. As it stands now, Congress appears perfectly and disturbingly comfortable with legislating in the dark. It’s possible, however, that Congress can minimize the damage of extending this unconstitutional bill. It can include mandatory auditing and reporting to Congress and the public so that, if an extension passes and we have to go through this again, hopefully we’ll be able to evaluate theprogram for both its effectiveness and legal basis. Truly, if it is perfectly legal (which all signs point to no – from the president’s own admissions) and truly necessary, there should be nothing to hide.

We also shouldn’t lose sight of the fact that we still have to contend with the Senate Intel bill which, in some respects, is even worse than the PAA (with immunity being tacked on like a crude appendage). We have to keep the pressure up on both our Senate – and frankly House – members to let them know that they can’t buckle and pass the Senate Intel bill. No matter how scary that sunset may appear to them. No matter what lies the President trots out during the State of the Union. Senator Kennedy’s quote was right on the money – the administration can’t have it both ways. President Bush cannot veto a bill he claims is vital to national security and the safety of all Americans because he’s trying to keep his buddies out of trouble.

The truth is Congress should have voted no on anything except that narrow foreign-to-foreign fix that was supposedly the original problem. In an ideal world, that’s still the barometer. In the end, letting the PAA expire really means that we are back to the days of pre-August FISA and all of the Fourth Amendment protections it entails. Before Congress completely succumbed to the administration’s and Director of National Intelligence Mike McConnell’s campaign of fear and misinformation. Before any talk of “modernizing” a bill that had been updated more than 50 times since its passage. Before we lost faith in our leaders after watching them buckle under the very pressure they were elected to withstand.

The truth is FISA never needed to be “modernized” – it needed to be followed.

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