Domestic Spying: Opposition Talking Points

This morning Glenn Greenwald issued the following call to arms:

The Administration will be held accountable
for its illegal conduct here if and only if
Americans becomes convinced that the
Administration's actions were wrongful and
deserve punishment. And that, in turn, will
happen only if Bush opponents formulate an
effective and coordinated strategy for making
this case directly to Americans, and then
articulate those principles aggressively and
passionately.

Glenn correctly observes that in order to make this case, we must "agree on a limited set of clear, focused and principled points, and then activate every instrument of public persuasion which exists, and invent new ones which do not exist, to convey the formulated argument in a coordinated fashion." Glenn does a good job of laying out the arguments that need to be made. The next step is to condense those arguments into simple, cogent talking points that people can use to spread the truth about this issue and dispel the misinformation being circulated by the Bush administration and its apologists. What follows is my initial attempt to do that.

OPPOSITION TALKING POINTS:

• Everyone is in favor of surveilling terrorists.

If Bush's defenders insist that this is not the case, ask them to name a single politician or pundit who believes we should not be listening in on terrorist communications.

• There is a law (FISA) which allows for the surveillance of terrorists here in the U.S. so long as certain minimal standards of oversight are met.

Emphasize that FISA is not at all ambiguous, that it provides the "exclusive means" for conducting foreign intelligence surveillance of U.S. persons. Also emphasize that, while warrants are required, they are easily obtainable, almost never turned down, and can be secured up to 72 hours after surveillance begins.

• The sole purpose of FISA is to ensure that the executive branch limits its spying activities to suspected terrorists (and other threats to national security) and not innocent Americans.

Emphasize that FISA was passed because previous administrations proved they could not be trusted to spy solely on our enemies, that they instead spied on all sorts of innocent Americans in violation of the Constitution. Emphasize that, without judicial oversight, it is impossible to prevent or even detect this sort of abuse. Or put another way, lack of oversight invites abuse.

• President Bush has authorized the very type of surveillance (warrantless and with no judicial oversight) that FISA makes criminal.

Emphasize that the Attorney General has conceded that this program involves the type of domestic surveillance that FISA makes it a crime to do without a court order.

• The President's stated reasons for bypassing FISA do not make sense and are inconsistent with the administration's own prior statements about this very law.

The Administration's claim that it needed a lower standard than probable cause is contradicted by the Justice Department's opposition to the DeWine amendment in 2002, in which it argued that lowering the standard under FISA from 'probable cause' to 'reasonable suspicion' was unnecessary and possibly unconstitutional.

The Administration's claim that FISA is outdated and obsolete is contradicted by the President's own statements when he succeeded in having FISA updated in 2001 (via the Patriot Act). Make sure to have the text of Bush's Patriot Act signing statement and his October 27, 2001 weekly radio address handy. In those statements Bush makes it crystal clear that FISA has now been modernized and allows for the surveillance of all terrorist communications.

• The President has lied to the American people repeatedly about his intention to obey this particular law

Have the text of Bush's April 20, 2004 speech in Buffalo handy, the one where he assures the American people that "[n]othing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Also quote Bush's October 2001 radio address in which he "assures" the American people that the updated FISA statute "will be enforced to the full."

And above all else, hammer home this crucial point:

• The legal theory upon which the President is relying has no logical stopping point. Under this theory of executive power, the only thing preventing the full-scale imposition of martial law within the United States is the discretion of the President.

Emphasize that this dangerous theory of executive power applies to much more than mere surveillance. It can and has been used to justify torture, indefinite detention, and much more. Gonzales conceded in his testimony before Congress that only the president's discretion is keeping him from extending the current program to purely domestic communications. When the president has the unreviewable authority to decide when we're at war and what is necessary to fight that war, his powers are virtually limitless.

• This war will last indefinitely. This is not about what emergency powers the president should have, but rather what powers the president should have for the foreseeable future.

The Attorney General conceded in his testimony on Monday that this war will last until al Qaeda is defeated. Because al Qaeda is a stateless organization, there is no reason to think it will ever be fully defeated. Whatever powers we allow the president to exercise now will likely be in effect for the rest of our lifetimes.

And last but not least (and to borrow Glenn's words):

• This scandal is not about liberalism or conservatism, but is about core American political values.

The number of prominent Republican politicians and principled conservatives who have publicly expressed their concern over the Administration's conduct increases daily. Their concerns are exactly the same concerns shared by liberals and Democrats. They fear that Bush's actions threaten the very core of our constitutional system, that they undermine our separation of powers, our system of checks and balances, and the supremacy of the rule of law. These principles were central to the founding of our country and have served us well for over 200 years. We simply cannot countenance the sort of lawlessness this administration claims it has the power to engage in. We have to draw a line, and we have to do it now. If this sort of action is allowed to stand, the precedent will be disastrous. This is how republics fail.