Fear and False Claims
February 28, 2008
Updated: February 29, 2008
Playing the terrorism card, a GOP-linked group twists facts about a controversial electronic surveillance bill.
Summary
A widely-seen ad pushes a White House-backed bill that would make it easier for the government to wiretap Americans. It also would give retroactive legal immunity to telecom companies that cooperated with Bush's secret, post-9/11 warrantless wiretapping program.

Sponsored by Defense of Democracies, a group with GOP connections, the ad  takes the House to task for not passing the bill, as the Senate has. The ad appeals to fear, with its image of Osama bin Laden and similar ploys. But we find that it also makes several misleading claims.

Specifically, the ad says that:
  • "The law" allowing government eavesdroppers to intercept al Qaeda communications has expired. But the main, 30-year-old law that lets them listen in, the Foreign Intelligence Surveillance Act, is still on the books. It's a law amending FISA, making it easier for intelligence-gatherers to eavesdrop on communications that might include Americans, that has expired.
  • "[T]he House refuses to vote" to replace the lapsed law. Actually, the House passed its own version of the legislation months ago. The House and Senate are now in conference to resolve the differences in their bills, which is the normal legislative process.
  • "[N]ew surveillance against terrorists is crippled." The administration has admitted that surveillance authorized under the expired bill will extend at least into August. It has also admitted that when a new member of a known terrorist organization is discovered, that person can be surveilled via authorizations granted under the expired law. And at any rate, FISA itself hasn't expired, and any time the government has strong evidence that someone is a member of a terrorist organization, it can still get a court order to eavesdrop on that person.
Update Feb. 29: Defense of Democracies sent us comments saying portions of this article are "misleading the public" and "twisting the facts" about aspects of the legislation. For details see the discussion at the end of the article.
Analysis

The ads began running Friday, Feb. 22 in 17 media markets targeting 15 Democratic members of the House. A national version was up and running Monday on the major cable networks, and it was expected to air for most of this week. It appeared during a commercial break in Tuesday night's MSNBC-sponsored debate between Democrats Barack Obama and Hillary Clinton.

The group behind the ad, Defense of Democracies, was set up just last week. It was spun off from a nonprofit called Foundation for Defense of Democracies, which was formed after 9/11 and is headed by Clifford May, a former spokesman for the Republican National Committee. The three listed members of the foundation's board of directors are Steve Forbes, editor-in-chief of the business magazine Forbes and a Republican candidate for president in 1996 and 2000; Jack Kemp, candidate for the Republican presidential nomination in 1988 and GOP nominee Bob Dole's running mate in 1996; and Jeane Kirkpatrick, best known as Ronald Reagan's ambassador to the United Nations. Kirkpatrick died in 2006, however. A few Democrats were sprinkled in among the parent group's advisers (as well as Democrat-turned-Independent Sen. Joe Lieberman), but several of the most prominent, including Sen. Charles Schumer of New York and Donna Brazile, the former campaign manager for Al Gore's presidential bid, have resigned because of this ad. Brazile issued a statement calling the ad campaign "misleading and reckless" and saying it would "have the effect of emboldening terrorists."

Organized under section 501(c)(4) of the tax code, the new group is not required to publicly disclose its donors, and it has no plans to do so, according to a spokesman. (Brazile’s statement claimed that "due to the influence of their funders" the parent group has "morphed into a radical right wing organization.") The group also declined to provide a list of lawmakers being targeted by the ad, but we’ve learned that they include Democratic Reps. Kirsten Gillibrand and Michael Arcuri of New York, Tim Mahoney of Florida, Joe Courtney and Chris Murphy of Connecticut, Nancy Boyda of Kansas, and Tim Walz of Minnesota, all of them first-term lawmakers who may be vulnerable in their reelection bids.

Defense of Democracies TV Ad: "Midnight" Osama

Narrator: Midnight. February 16th. The law that lets intelligence agencies intercept al-Qaeda communications expires.
Senate Democrats and Republicans vote overwhelmingly to extend terrorist surveillance.
But the House refuses to vote and instead goes on vacation.
So new surveillance against terrorists is crippled.
Tell the House of Representatives to do its job and pass the Senate’s terror surveillance bill… to keep us all safe.
Osama bin Calling ...

Cue the scary music, black background and misleading statement:
Narrator: Midnight. February 16. The law that lets intelligence agencies intercept al-Qaeda communications expires.
This is simply not true. First, if government eavesdroppers want to listen in on communications between two suspected terrorists who are outside the U.S., they can. That would likely include a lot of al-Qaeda-related chats. No warrant is necessary as long as the communication isn't intercepted over a wire in the U.S.

Second, even if one of the parties targeted for tapping is in the U.S., the government still can rely on the granddaddy of laws that deal with wiretapping as a foreign sleuthing tool, the 1978 Foreign Intelligence Surveillance Act. Under FISA, intelligence-gatherers must apply to a special court for a warrant to tap the communications of a person in the U.S. The process can be cumbersome, although officials have said that court approval sometimes takes only minutes. And if there's an emergency and the government has strong evidence, the wiretap can proceed before an order is sought; authorities have up to 72 hours to get their application to the FISA court, which seldom swats the government down. Of the 2,181 applications made to the FISA court for authority to conduct electronic surveillance or physical searches in 2006, just one was denied, and only in part, according to the Justice Department's annual report on the statute.

What the ad's narrator really means is that a law updating and expanding FISA to make the government's work easier, which was passed last August, has expired. The Protect America Act was given a life of only six months because lawmakers wanted to put something in place while continuing to debate its civil liberties and national security implications before deciding whether to make it permanent. That's the law that vaporized on Feb. 16, with disagreements between the House and Senate still unresolved.

The Protect America Act, among other things, expanded the range of situations in which the government could operate without a FISA warrant. Controversy arose because the wording of the law could have allowed the government to wiretap the conversations and e-mails of Americans without a court order when targeting a foreigner abroad.
Margarita, Anyone?

Which brings us to the ad's next claim:
Narrator: Senate Democrats and Republicans vote overwhelmingly to extend terrorist surveillance. But the House refuses to vote and instead goes on vacation.
It's true that the Senate passed a bill replacing the Protect America Act, and it was largely to the White House's liking. It's not as though the House sat on its hands, however. It passed its own bill, the Restore Act, back in November.

The Bush administration opposes the House bill, as do its allies at Defense of Democracies, and the point of the ad is to pressure House members to accede to the Senate version. Both bills rein in, to some degree, the Protect America Act's broad wiretapping provisions, which had alarmed civil libertarians. The Senate bill grants more authority to the executive branch with respect to ordering surveillance, however, and a minimal role to the court, while the House bill envisions a larger role for the court.

And there's another major difference that's become a flash point on Capitol Hill. The Senate bill would give telecommunications companies retroactive immunity from lawsuits arising from their cooperation with the Bush administration's post-9/11 intelligence-gathering program. In December 2005, the New York Times broke a story revealing that after the World Trade Center and Pentagon attacks, President Bush secretly authorized a program that allowed the government to bypass FISA in pursuit of terrorists, even when collecting communications in the U.S. More than 40 lawsuits contending that the program was illegal and that telecom companies violated citizens' constitutional rights by participating in it are pending in federal court in California, consolidated from around the country. Bush has accused Democrats who oppose this immunity provision of shilling for the trial lawyers' bar, and he has cast the House Democrats as roadblocks on this issue almost daily.
Castigating the "Cripplers"

The ad's next claim is a very strong statement, but we don't have the security clearance to say how much truth is in it.
Narrator: [N]ew surveillance against terrorists is crippled.

Though the narrator never mentions it, this seems to be a reference to possible refusal by telecom firms to assist with wiretapping. In a letter written to House Intelligence Committee Chairman Silvestre Reyes last Friday, Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell said:

Mukasey/McConnell letter: We have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act. ... In particular, [companies] have delayed or refused compliance with our requests to initiate new surveillances of terrorist and other foreign intelligence targets. ... Indeed, this has led directly to a degraded intelligence capability.

The alleged reason for this was because Congress hadn't yet given the firms retroactive immunity. Administration sources had told reporters that same evening that at least one telecom firm was refusing to help the government track newly suspected terrorists, according to the Los Angeles Times. Hours later, though, officials withdrew that claim, saying all the telecom companies would continue cooperating with the government's requests while Congress worked on a compromise.

Critics of the immunity provision point out that it provides blanket immunity and is not specifically targeted to lawsuits arising from the companies' cooperation with the post-9/11 program. Some suspect there may be another secret program that hasn't yet come to light. Telecom companies already have immunity for actions they take in connection with surveillance conducted under the law.

The ad's play to public fear echoes the tactics used by the administration to put strong pressure on Congress. In an interview late last year with the El Paso Times, McConnell even went so far as to say that without quick approval of the law, "some Americans are going to die" because of continuing public discussion of the issue. The reporter asked McConnell how he makes the case that the new law is important.

El Paso Times: You have to do public relations, I assume?

McConnell: Well, one of the things you do is you talk to reporters. ... The fact we're doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they're using a process that we can exploit and the more we talk about it, the more they will go with an alternative means. ...

El Paso Times: So you're saying that the reporting and the debate in Congress means that some Americans are going to die?

McConnell: That's what I mean. Because we have made it so public.

Unless McConnell is clairvoyant, it's going too far to proclaim that Americans "are going to die" because a wiretapping bill is being publicly debated.

The ad is careful to specify that "new" surveillance has been crippled. That's because any eavesdropping orders issued under the Protect America Act of last August would be in effect for up to a year, so there's no imminent danger of the communications of known terrorists.

The ad's closing assertion is that the House should "do its job" by passing the Senate bill to "keep us all safe." But if anything in the murky debate over spycraft is clear, it's that the Constitution doesn't make it "the job" of the House to rubber-stamp Senate-passed bills, or bend to the wishes of the president.

Update Feb. 29: Andrew C. McCarthy, director of the foundation's Center for Law and Counterterrorism, responded to this article.  McCarthy's arguments leave us still convinced that the ad contains false claims and twists the facts, but we have posted his comments as a "supporting document" both as a courtesy to FDD and so that our readers may judge for themselves.

He states that a "radical" court decision now applies FISA's "arduous" probable-cause requirements to interception of foreign-to-foreign communications. He also dismisses the House bill as “unacceptable,” saying President Bush has threatened to veto it.

While it is true that a court decision last year applied FISA to some foreign-to-foreign communications – those that are routed through wires in the U.S., as sometimes happens – it is not true that all legal authority to intercept al Qaeda communications has expired as this ad implied. Furthermore, civil libertarians argued that the Protect America Act’s attempt to address that decision didn't provide sufficient protection to Americans who might have been communicating with persons targeted abroad. The House bill would take care of the problem of foreign-to-foreign communications that travel through U.S.-based switches with explicit language saying no warrant would be needed to eavesdrop on them.

We take no position on either House or Senate legislation, and it remains to be seen what will emerge from the negotiations between the two bodies, let alone whether the president will sign it or not. Our point is that the House did not "refuse to vote" as the ad claimed.

We wish to make clear that we neither support or oppose Defense of Democracies' position. What we object to are the use of appeals to fear, false claims and twisted facts in support of this or any other legislation.

– by Viveca Novak

Sources
Meyer, Josh. "White House backtracks on claims of lost intelligence." Los Angeles Times, 24 Feb. 2008.

Riechmann, Deb. "Bush pushes House to pass intelligence bill, says Democrats side with trial lawyers." Associated Press Financial Wire, 23 Feb. 2008.

Lichtblau, Eric. "More sharp words traded over lapsed wiretap law." The New York Times, 23 Feb. 2008.

Risen, James and Eric Lichtblau. "Bush Lets U.S. Spy on Callers Without Courts." The New York Times, 16 Dec. 2005.

Mukasey, Michael and J.M. McConnell. Letter to The Hon. Silvestre Reyes, 22 Feb. 208.

Roberts, Chris. "Transcript: Debate on the foreign intelligence Surveillance Act." El Paso Times, 22 Aug. 2007.

Bazan, Elizabeth. "The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues." CRS Report for Congress, Congressional Research Service, updated 14 Dec. 2007.

Rockefeller, Jay and Patrick Leahy, Silvestre Reyes and John Conyers. "Scare Tactics and Our Surveillance Bill." Washington Post, 25 Feb. 2008.