Fear and False Claims

A widely-seen ad pushes a White House-backed bill that would make it easier for the government to wiretap Americans. It also would give retroactive legal immunity to telecom companies that cooperated with Bush's secret, post-9/11 warrantless wiretapping program.

Sponsored by Defense of Democracies, a group with GOP connections, the ad  takes the House to task for not passing the bill, as the Senate has. The ad appeals to fear, with its image of Osama bin Laden and similar ploys. But we find that it also makes several misleading claims.

Specifically, the ad says that:

"The law" allowing government eavesdroppers to intercept al Qaeda communications has expired. But the main, 30-year-old law that lets them listen in, the Foreign Intelligence Surveillance Act, is still on the books. It's a law amending FISA, making it easier for intelligence-gatherers to eavesdrop on communications that might include Americans, that has expired.

"[T]he House refuses to vote" to replace the lapsed law. Actually, the House passed its own version of the legislation months ago. The House and Senate are now in conference to resolve the differences in their bills, which is the normal legislative process.

"[N]ew surveillance against terrorists is crippled." The administration has admitted that surveillance authorized under the expired bill will extend at least into August. It has also admitted that when a new member of a known terrorist organization is discovered, that person can be surveilled via authorizations granted under the expired law. And at any rate, FISA itself hasn't expired, and any time the government has strong evidence that someone is a member of a terrorist organization, it can still get a court order to eavesdrop on that person.

Update Feb. 29: Defense of Democracies sent us comments saying portions of this article are "misleading the public" and "twisting the facts" about aspects of the legislation. For details see the discussion at the end of the article.

Analysis
The ads began running Friday, Feb. 22 in 17 media markets targeting 15 Democratic members of the House. A national version was up and running Monday on the major cable networks, and it was expected to air for most of this week. It appeared during a commercial break in Tuesday night's MSNBC-sponsored debate between Democrats Barack Obama and Hillary Clinton.

The group behind the ad, Defense of Democracies, was set up just last week. It was spun off from a nonprofit called Foundation for Defense of Democracies, which was formed after 9/11 and is headed by Clifford May, a former spokesman for the Republican National Committee. The three listed members of the foundation's board of directors are Steve Forbes, editor-in-chief of the business magazine Forbes and a Republican candidate for president in 1996 and 2000; Jack Kemp, candidate for the Republican presidential nomination in 1988 and GOP nominee Bob Dole's running mate in 1996; and Jeane Kirkpatrick, best known as Ronald Reagan's ambassador to the United Nations. Kirkpatrick died in 2006, however. A few Democrats were sprinkled in among the parent group's advisers (as well as Democrat-turned-Independent Sen. Joe Lieberman), but several of the most prominent, including Sen. Charles Schumer of New York and Donna Brazile, the former campaign manager for Al Gore's presidential bid, have resigned because of this ad. Brazile issued a statement calling the ad campaign "misleading and reckless" and saying it would "have the effect of emboldening terrorists."

Organized under section 501(c)(4) of the tax code, the new group is not required to publicly disclose its donors, and it has no plans to do so, according to a spokesman. (Brazile's statement claimed that "due to the influence of their funders" the parent group has "morphed into a radical right wing organization.") The group also declined to provide a list of lawmakers being targeted by the ad, but we've learned that they include Democratic Reps. Kirsten Gillibrand and Michael Arcuri of New York, Tim Mahoney of Florida, Joe Courtney and Chris Murphy of Connecticut, Nancy Boyda of Kansas, and Tim Walz of Minnesota, all of them first-term lawmakers who may be vulnerable in their reelection bids.