Attack Ad Substitutes Fear for Fact

The National Republican Senatorial Committee’s first shot in the Mark Udall-Bob Schaffer U.S. Senate race turns out to be a blank.The 48-second YouTube ad says Udall’s support for an updated version of the Foreign Intelligence Surveillance Act – or FISA – would make it easier for terrorists to attack America.

Actually, the ad doesn’t mention FISA. It’s too busy talking about “known terrorists” calling the United States and how Mark Udall won’t let the government intercept those calls without first going to court.

And so, the lying begins.

Udall supports an intelligence bill that let’s the government tap communications in emergency situations before it gets the FISA court’s permission. The court just has to review the emergency action within 45 days after it starts.

But that kind of accuracy has no place in a sound bite meant to promote fear rather than fact.

The FISA update that Udall backs not only allows for emergency surveillance before warrants are issued, it actually lets the government get non-specific, open-ended warrants to monitor people or group for up to a year. That is not probable cause. It is a fishing expedition.

But it is the kind of tool that both political parties know is needed in the war on terror. As a member of the House Armed Services Committee, Udall understands better than most of his colleagues. If the Republicans want to smear him with a wussy factor, they’ll need to do better than their current effort.

Here, according the Congress’ website, is what both parties agree on: You don’t need a court warrant to intercept communications of “non-United States person when both ends of the communications are outside the United States.”

Both sides also agree that you need an individual court warrant “when targeting persons in the United States.”

The debate starts there.

In the Colorado Senate race Republicans can begin by saying what their guy believes. Schaffer should articulate his points about warrantless wiretaps and aim them at actual differences with Udall.

Where Udall differs with Republicans generally is in his support for tough auditing of any wiretaps that do take place. The purpose of the audits is to try to minimize the impact of intelligence-gathering on innocent American citizens and legal U.S. residents. If Schaffer does not want to minimize that impact, let him say so and explain why.

But make no mistake. No matter which version of the Foreign Intelligence Surveillance Act the men in the Colorado Senate race – or any others – choose, a simple fact exists.

The government will have the capacity to listen first and explain later.

Under one plan it will just have a little more explaining to do after the fact.

Benjamin Wittes, the Brookings Institution’s Research Director in Public Law and Governance Studies, said it well in an article: Under either the Republican or Democratic approach, “the National Security Agency will have the legal authority to listen to your calls without first going to the Foreign Intelligence Service Act Court to get a warrant.”

As long as that’s true for regular Americans, it’s going to be true of terrorists. And as long as that’s true of terrorists, the YouTube attack on Udall is a lie.

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