Let's do away with the legislative fiction of the terrorist alarm clock.

The law, lawyers, and the court.
Jan. 29 2008 6:42 PM

Alarmist Clock

Let's do away with the legislative fiction of the terrorist alarm clock.

Harry Reid. Click image to expand.
Harry Reid

The cliche holds that we are always fighting the last war. I disagree. For the last seven years, congressional Democrats have been fighting the next one: the war perennially set to erupt if they don't deliver whatever the president asks of them immediately. Time and again, they've been rendered so terrified by White House threats about imminent terrorist attacks that they have caved on issues ranging from detainee rights to secret surveillance to torture. And every time they've caved, it's under the threat that if they withhold from the president extra powers (ones that he's often already seized in secret), terrorists will mass against us instantaneously, and they will be blamed.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

This same old fight played out this week in the Senate's wrangling over last summer's stopgap update to the Foreign Intelligence Surveillance Act. The Protect America Act  passed in August amid a welter of Republican fearmongering and Democratic fear-purchasing. Styled as a "fix" to update FISA, the 1978 surveillance law, the PAA was set to expire at midnight on Thursday, and the House and Senate spent several days playing a game of chicken with the White House over its extension, concluding in an agreement today to extend it for 15 days so they can fight some more.

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If the PAA had been allowed to expire this week, or is permitted to do so in two more weeks, it would not mean FISA itself expires, as some sloppy reporting has consistently implied. It would mean that expanded secret authority to spy on Americans without connections to terrorism—allowed by Congress last summer—would not be immediately extended. Existing warrants will survive the new deadline and live a long and healthy life thereafter. FISA itself will still be in effect. In other words, if a terrorist attack were to be launched against America on the same day the PAA expires, it would not be because Senate liberals had turned out the lights on intelligence-gathering.

In the last two days, the fight over FISA devolved into bickering over whether the PAA might be extended for seven days, or 15, or 30, with the White House threatening to let the law expire unless it got the version it wants. Glenn Greenwald and others observed that this was a rather cavalier way to treat a piece of legislation allegedly so critical to national security. The very fight about a seven- versus 15- versus 30-day renewal, and the subsequent scramble to tack on 15 more days, highlights the absurdity of setting a timer on drafting national-security legislation.

Yet in last night's State of the Union speech, President Bush did just that, warning the Congress that, with respect to FISA, "[I]f you do not act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger." This is classic Bush-speak: Specify the precise day on which we will all suddenly become less safe while skateboarding over the nature of the danger or the proposed fix.

Similar FISA alarm clocks were ringing all over the place this week. Sen. Mitch McConnell, R-Ky., warned from the Senate floor: "The terrorists are not going to take a vacation a few weeks from now or six months from now or next year." He upped the ante: "The American people should be frightened." Roger Pilon warned in the Wall Street Journal that "the clock is ticking." But which clock? Where is the big terrorist alarm clock that sounds every time the president doesn't get his way?

Congressional Democrats hit the snooze button today, buying themselves a few more days to wrangle over the bill and its amendments. But they did little to debunk the myth that the precise timing of their actions—15 days versus next month or six months from now—bears some direct connection to the next attack.

Artificial deadlines aside, the actual legislation the White House and Congress are tussling over is still a moving target. There are House and Senate versions, enough amendments to go around, and a saga of procedural maneuvering that will serve Senate Majority Leader Harry Reid well if he ever looks for post-Congress work with Cirque du Soleil. The ins and outs are being painstakingly chronicled by Greenwald, Christy Hardin Smith, Paul Kiel, and others.

It's true enough that FISA requires a sober update to account for technological changes since it was drafted in 1978, but the PAA wasn't sober and it wasn't justified. Now we must also contend with the added insult of the president's demand for telecom immunity for the companies that allegedly helped him illegally spy on Americans. Hmmm. Don't punish phone companies for believing our lies almost sounds plausible, so long as the Bush administration remains on the hook for peddling those lies. But that's not what the White House wants—it wants telecom immunity, plus more government secrecy, plus no oversight. Sens. Feinstein and Feingold, and others, are pushing for amendments that would keep us safe while preventing the Bush administration from slinking away from its surveillance activities.

Congressional Democrats are in peril of being hoodwinked again in two weeks as they were last August; not by rational argument or even by the parliamentary electric slide, but by their congenital inability to act any time the White House invokes the terrorist alarm clock. If ever there was a game of chicken Democrats can win, this is it: Let's put the fictions of the convenient-sounding emergency-producing timers to rest. Be it the terrorist alarm clock that justifies illegal surveillance or the "ticking time bombs" that justify illegal torture, the only clock that matters now is the one counting down to a return to the rule of law.