Let The Protect America Act Extension Debate Run Its Course

By Victor Comras


While I agree with my colleagues, Dennis Lormel and Jeffrey Breinholt, that renewal of the Protect America Act should be considered by Congress as urgent and serious business, it’s misplaced to ascribe current delays to merely “playing politics.”

Few pieces of legislation before Congress carry such gravity and importance when it comes to the twin goals of protecting our national security and preserving our civil liberties. Such matters should be considered with gravity and thorough deliberation. And there is much in this act which deserves further deliberation. Many of its current provisions were adopted previously under an atmosphere of high tension and great pressure from the White House. The only pressure now is that President Bush threatens to veto any further temporary extension of the current act. A temporary extension would certainly have kept in place sufficient authority to keep tabs on the potential terrorists within our midst as Congress worked through the act thoroughly.

And, as Richard Clarke wrote earlier this month in the Philadelphia Inquirer:

“Let me be clear: Our ability to track and monitor terrorists overseas would not cease should the Protect America Act expire. If this were true, the president would not threaten to terminate any temporary extension with his veto pen. All surveillance currently occurring would continue even after legislative provisions lapsed because authorizations issued under the act are in effect up to a full year. “Simply put, it was wrong for the president to suggest that warrants issued in compliance with FISA would suddenly evaporate with congressional inaction. Instead - even though Congress extended the Protect America Act by two weeks - he is using the existence of the sunset provision to cast his political opponents in a negative light. “For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections.”

So what is the current debate in Congress really about? It’s about just how deeply we really need to encroach on our civil liberties to assure our national security, and on the extent of the protections, checks and balances, that should remain in place to limit police power infringements of civil and privacy rights to those truly warranted by the circumstances. History has shown, including our own national history, that we must constantly assure that such adequate protections, checks and balances, are in place. And, I believe, that using our courts to hold those that usurp or violate these inherently dangerous authorities responsible, is an essential protection. The 52 lawsuits now pending before the US courts would test, specifically, whether such usurpation actually occurred. And, if a government agency, or those complicit with it, did usurp or abuse their authority, or make a serious mistake, unduly infringing our rights(and I hope that it will be found that this is not the case), they should pay for their misdeeds just as we would expect any of our neighbors or business colleagues to do.

It is this ability of simple citizens to hold government and private entities and individuals liable for their misdeeds that best assures that they will act responsibly.




February 20, 2008 11:25 PM Link TrackBack (0) Print

What's Really at Issue in the Intelligence Bill

By Jeffrey Breinholt


Dennis Lormel is absolutely right in his recent post about the FISA renewal bill being held hostage to politics. I think there’s something going on that is even more worrisome.

When the PATRIOT Act was going through its controversy, I accepted an invitation to participate in a debate hosted by the Long Beach City Human Rights Commission in Southern California. Before the event, I had a short conversation with a woman in attendance, an opponent of the PATRIOT Act, who described her group’s goal of making individual police officers think twice before exercising their discretion. Audaciously, she expressed the hope that cops would weigh the prospect of being sued if they undertook certain actions authorized by the PATRIOT Act.

Is this something we really want? Cops know they can be liable for brutality, and that evidence they unconstitutionally seize can be suppressed. However, to increase the stakes with the threat of tort liability for acting in a way that is ostensibly authorized by law is a sure way of building a risk-averse police culture and jeopardizing public safety.

I realize that there are plenty of lawyers suing the telecoms these days who are also involved in courageous lawsuits against terrorists, and that the issue of company liability for cutting corners in a regulated field is not a exactly analogous to cops being sued for acting in accordance with the PATRIOT Act. However, I have written about the dangerous trend of using litigation to discourage civic responsibility. The Arizona imams who were pulled off the Minnesota flight after their suspicious activity was noted by fellow passengers started their lawsuit by suing the passengers, in addition to the airlines. In another case from last year, a woman sued a bank teller for calling the police after noticing the cashier’s check she was trying to deposit was counterfeit. The message behind these actions was that people should think twice (or three or four times) before cooperating with the government. It is a terrible message to send, and I fear it’s being stoked by the debates over the immunity provisions for the telecoms.

Of course, I am not saying that there is no room for compliance in regulated industries, and that commercial entities should ignore rules relating to how they must handle private information. Still, when we are talking about corporate efforts to assist sincere government actors in the age of terrorism, immunity seems not too big of a stretch. Something tells me that most Americans share this view, and that the bill will eventually be enacted with the immunity provisions in place. At least that is my hope.


February 20, 2008 03:23 PM Link