Jacob Sullum
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            Last August, panicked at the prospect of an imminent terrorist attack that could be averted only by granting the executive branch new surveillance powers, Congress passed the Protect America Act. With the law scheduled to expire this month, the Bush administration is trying to scare Congress into making the powers permanent.

The alleged crisis is an artificial one created by a president who waited until last summer to seek congressional approval for the illegal surveillance his administration conducted after 9/11. Bush took his time, and so should Congress.

After The New York Times revealed, in December 2005, that the National Security Agency had been eavesdropping on international communications involving people in the U.S. without the warrants required by the Foreign Intelligence Surveillance Act (FISA), the Bush administration insisted the program was perfectly legal. The Justice Department claimed Congress (apparently without realizing it) had implicitly amended FISA when it authorized the use of military force against Al Qaeda and its Taliban allies in Afghanistan.

            At the same time, then–Attorney General Alberto Gonzales said the White House had not asked Congress to change FISA because Congress probably would have said no. That explanation was inconsistent not only with the claim that Congress already had legalized the surveillance program but also with the fact that Congress had amended FISA in other ways by passing the PATRIOT Act in October 2001. If any doubt remained that Congress would have been receptive to the administration’s request for further FISA amendments, it was dispelled by the hasty passage of the Protect America Act.

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Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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