What Newt Gingrich Can Teach Nancy Pelosi about Protecting Civil Liberties

I’ve got a new article in Reason taking the Democrats to task for their tepid defense of civil liberties. I suggest they take their cue from that noted civil libertarian Newt Gingrich, who in 1996 resisted President Clinton’s demands for expanded wiretapping powers:

Bush’s predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of “roving wiretaps.” The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so “in a methodical way that preserves our freedoms.” Senate Majority Leader Trent Lott vowed that Congress would not “rush to a final judgment” before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Today’s Democratic Congress has been far less protective of Americans’ privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about “rushing to judgment.” Indeed, both houses of Congress approved the White House’s preferred legislation with minimal changes within three days of its introduction.

Meanwhile, it seems to be Opposite Day over at the Heritage Foundation, as they chide U.S. senators who want to “include measures in an otherwise bipartisan reform of FISA that would punish US companies that helped US intelligence agencies.” Of course, these senators’ proposals wouldn’t punish anyone; they would merely remove provisions that excuse companies for breaking laws that are already on the books. The companies will only be punished if they broke the law.

Heritage says that these companies “cooperated with government requests to ignore possible technical violations of FISA’s outdated provisions.” That’s a lot of adjectives for one sentence, but it doesn’t change the fact that breaking the law — even a “technical,” “outdated” law — is illegal. I find it surprising that Heritage scholars, who are normally strong champions of the “rule of law” would enthusiastically push the theory that following the law is optional or that the president — who takes an oath to “take care that the laws be faithfully executed” — has the power to authorize other people to break the law on his behalf. He doesn’t, and it would set a dangerous precedent to let those who relied on such assurances off the hook for breaking the law.