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February 18, 2008

Suddenly FISA's Not Important? Since When?

In the past few years we've seen the Iraq Study Group touted, and then mysteriously vanish into thin air. Then it was The Generals: "Listen to the Generals!", the Democrats shouted... they are the only reliable source of opinion on how the war is going. Until General Betrayus came to Capitol Hill.

Suddenly, listening to Generals was a Very Bad Idea. So untrustworthy, these military types. How can we know they're not just partisan mouthpieces for the Bushreich? And after all, men in uniform just parrot whatever they're told to say, so there's really no point in listening to them, is there? And whatever happened to that leaked classified memo about Anbar Province being irrevocably lost? Thank God Thomas Ricks broke the law to bring that to our attention.

And the emerging civil war in Iraq. How's that working out for the New York Times?

And the benchmarks. Whatever happened to the criticism that assessing our progress in Iraq was really all about the benchmarks?

In an age of constantly shifting goalposts, the Editorial Staff should not be surprised to see one more pillar of lefty outrage abruptly retired from the public stage when it proves no longer "useful":

According to top Democrats, the expiration of the Protect America Act (PAA) when the clock strikes midnight Sunday is no big deal. Our ability to monitor foreign threats to national security, they assure us, will be completely unaffected.

This is about as dumb a talking point as one can imagine. And it is just as demonstrably false.

Think for a moment about Tuesday’s crucial Senate bill overhauling our intelligence law that Speaker Nancy Pelosi refused to allow the House to consider before recessing Friday — for a vacation. (Democrats evidently had no time for national security, having exhausted themselves on such cosmic matters as a baseball pitcher’s alleged steroid use and unenforceable, unconstitutional contempt citations in a stale investigation into something that wasn’t a crime and that no one but MoveOn.org cares about any longer).

As McCarthy explains, in the Senate, the same bill easily passed. In fact, both parties made significant concessions to ensure its success:

In a Senate controlled by the Democrats, the bill passed by an overwhelming 2-to-1 margin. To attract such numbers, the Bush administration (as I detailed yesterday) gave ground on critically important issues of executive power and expansion of the FISA court’s role.

Democrats surely did not want to give President Bush this legislative victory, and President Bush certainly did not want to cave on these issues. But both sides compromised precisely because they understood that failing to do so, failing to preserve current surveillance authority, would endanger the United States.

That is why so many Senate Democrats went along. That is why Democrats in both houses agreed to the PAA in the first place. That is why 34 House Democrats defied their leadership on Wednesday, voting against another temporary extension of the PAA in an effort to force a vote on the Senate bill — which, had Pelosi allowed it to come to the floor, would have become law by a healthy bipartisan margin.

If the expiration of the PAA made no difference, as top Democrats are speciously claiming now, there is not the remotest chance any of those things would have happened.

And yet as Ace points out, even some sources on the right maintain intelligence gathering will be unaffected by the House's failure to act on FISA:

Timothy Lee, an adjunct scholar at the Cato Institute, said the last time Congress overhauled FISA � after the September 11 terrorist attacks � President Bush praised the action, saying the new law "recognizes the realities and dangers posed by the modern terrorist."

What Lee fails to mention is that in February or March of last year (we can't be sure because the ruling is secret), a FISA court judge ruled that foreign-to-foreign communications are subject to a warrant requirement if they are carried over the U.S. telecommunications infrastructure. So there's actually a pretty good reason to think our nation will be in more danger in 2008 than in 2006.

That hasn't stopped Democrats and others from claiming that the Bush Administration is just fear-mongering on the issue. That was the claim of congressional Democrats in August, sore at the spanking they'd received after the intelligence community reported a drop in intelligence gathering of 75%:

At a closed-door briefing in mid-July, senior intelligence officials startled lawmakers with some troubling news. American eavesdroppers were collecting just 25 percent of the foreign-based communications they had been receiving a few months earlier.

...The report helped set off a furious legislative rush last week that, improbably, broadened the administration’s authority to wiretap terrorism suspects without court oversight.

Now let's all put our Big Logic Hats on for just a second.

If the intelligence community came to Congress because suddenly they were only collecting 1/4 of the information they had been, previously, and Congress were so concerned about this they passed emergency legislation to fix the problem...

...and Congress just allowed that legislation to expire...

What logical consequence should We the People expect from this? Let's ask Senator Jay Rockefeller, (D, West Virginia):

Now, let me say something more. What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded. It is already going to be degraded as telecommunications companies lose interest. Everybody tosses that around and says: Well, what do you mean? I say: Well, what are they making out of this? What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this? They get $40 billion worth of suits, grief, trashing, but they do it. But they don't have to do it, because they do have shareholders to respond to, to answer to.

Senator Rockefeller seems to be trying to tell us something.

Perhaps that if we don't give the intelligence community the tools to do the job, and American corporations some protection against frivolous lawsuits, the quantity and quality of our the intelligence we collect is going to be degraded.

And if past performance is any indicator, we can quantify the amount of that degradation: about 75%.

Fortunately, Nancy Pelosi is not the least bit concerned about Terrorists B-ZZ.

Sleep well, America.

Congress has got your back.

Posted by Cassandra at February 18, 2008 06:55 AM

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Comments

Bush has said that American lives will be sacrificed if Congress doesn't pass the Protect America Act but when Congress offered this week to extend the Act for 21 days to evaluate the Senate's changes, the President refused to support the extension, and has said he will veto any amendment that does not provide retrocative immunity for the phone companies.

Shouldn't you be asking why President Bush is willing to let us die to protect BigPhone?

Posted by: Got Irony at February 18, 2008 10:23 AM

Congress needs to stop with the temporary extensions. This entire "extension" kerfluffle was a fake emergency created by...

[drum roll]

THE DEMOCRATS LAST AUGUST.

1. THEY are the ones who set the deadline in the first place b/c they couldn't get their act together.

2. They are the ones who wanted an extension so they could go on vacation rather than just staying and doing the job we pay them for!

3. THEY are the ones who, after wringing concessions from the White House, prevented the bill from coming to a vote on the House floor and then went on vacation... after just returning from Christmas vacation. How many "vacations" do these people need? Odd how they found plenty of time to discuss other matters of pressing importance before they left... like steroids in baseball.

But they couldn't find time for this?


Shouldn't you be asking why Nancy Pelosi refused to allow a bill to come to the floor when 34 of OF HER OWN PARTY FELT STRONGLY ENOUGH ABOUT IT TO CROSS PARTY LINES?

Ah, but you don't ask questions like that, do you? Because the answers are damned uncomfortable.

Posted by: Susan SaranWrap at February 18, 2008 10:52 AM

Heavy use of the CapsLk key notwithstanding, your comment doesn't explain why Bush is willing to veto the entire bill unless it grants retroactive immunity to the telecom companies who agreed to warrantless wiretaps.

Security over secrecy? Interesting dealbuster, Mr. President.

Posted by: Got Irony at February 18, 2008 06:47 PM

Because without Congressional Immunity to the telecoms, the Vast Trial Lawyer Conspiracy will start a fishing expedition of immense proportions, looking for injury to millions of Americans, making the tobacco settlement look like a Five and Dime heist by a bunch of pikers.

And the trickle down of money will finance the Democratic Party for years to come.

How dumb do we look?

Posted by: Don Brouhaha at February 18, 2008 07:04 PM

It's called public policy, or perhaps you prefer a more old fashioned term: the principle of the thing.

I can understand that you don't see the "utility" (to you) in not throwing folks who cooperated with the federal government in the interests of national security to the wolves once they've served their purpose. True, the President doesn't think that way, but you don't agree with him anyway.

I can even understand that you may not be bright enough to understand what an absolutely horrible precedent that sets the next time law enforcement or the intelligence community try to gain the cooperation of corporate America under any LEGAL statute (I believe it's called "chilling effect" when it's applied to people who "matter" like "journalists" who get "scared" at the merest whisper of a lawsuit).

They will, of course, be advised by their corporate counsel to run like hell citing this exact precedent because they'll know that they can and will be sued after the fact for doing something they thought was legal at the time.

What I can't understand is, how come you can't figure out that we need the cooperation of the telecoms to make this program work?

And we they need assurances they won't be sued if they're going to cooperate.

Duh.

Posted by: Cassandra at February 18, 2008 07:40 PM

Also, you didn't address any of the points I made.

Why is that?

Posted by: Cassandra at February 18, 2008 07:43 PM

IOW don, it's not about the rule of law, it's not about privacy, or checks and balances or even security, it's about money?

Since when do we throw out entire lawsuits because defendants may lose too much?

Cassadra/SusanSaran: Not sure if you are one and the same)Telecoms have cooperated with government's legal wiretaps since they figured out how to listen to your phonecalls or at least since the Church Commission told them they better do so legally. it's one of the very reasons that Quest (in a class of one) refused to comply with the governments warrantless wiretap requests.

I think the issue of retroactive immunity for five years of illegal wiretapping, and Bush's unwillingness to give a 21 day extension because of it trumps the need to discuss vacation schedules.

Posted by: Got Irony at February 18, 2008 08:17 PM

So the President should just play into the Dems' hand by repeatedly accepting temporary extensions? Sometimes, you just need to say enough is enough and put your foot down. It's Nancy Pelosi who is to blame: the bill (previously passed in the Senate) we need would have passed IF she had allowed it to come to the floor. But, she couldn't have that, now could she?

Posted by: Miss Ladybug at February 18, 2008 09:05 PM

BTW, I'd be more worried about telecoms not cooperating with wiretaps because of this than their trepidation aout complying with legal requests.

Oops. So much for their patriotism.

Posted by: Got Irony at February 18, 2008 09:11 PM

Yes, it's about the money, to the Trial Lawyers. Hundreds of billions of dollars are at stake. Think about that as a chilling effect.

Trumping any other requirement or obligation, any notion of public service or duty, the Trial Lawyers will seek to punish the Telecoms for obstructing THEIR political viewpoint.

Just like the lawyers who are only too happy to represent non-uniformed combatants against their own government, to "prove a point".

And anecdotal reports about the FBI not paying their phone bills do not an argument make.

Posted by: Don Brouhaha at February 18, 2008 09:41 PM

I think the issue of retroactive immunity for five years of illegal wiretapping....

That's just the point. Corporations don't have the capability to independently verify the legality of every request they receive. They have to be able to trust the government, or at least trust that the government will protect them. Without the promise of immunity their own compliance depts. will never allow them to comply.

Again, duh.

You really worry me.

Posted by: Cassandra at February 18, 2008 09:54 PM

I just read today that Nancy didn't want to extend debate becasue her daughter is getting married thei week and she didn't want to be late.

Posted by: Navig8r at February 18, 2008 10:34 PM

That's just the point. Corporations don't have the capability to independently verify the legality of every request they receive. They have to be able to trust the government..

May I quote you after the November elections? May I also respectfully request that you read up on the Church Committee. And FISA.

Since it was enacted, FISA has compelled telecommunications companies to cooperate with surveillance, when it’s warranted—and what’s more, it immunizes them. It’s been that way for more than 25 years.

Still, too, this wasn't a lone instance of illegal surveillance or even twenty. This was years of *trusting* the government. Quest chose not to *trust* the government, asked for the legal basis for the wiretap orders, never received them and refused to comply.

Federal Judge Vaughn Walker (Reagan appointee-double oops) presiding over one of the cases challenging the legality of telecoms cooperating in the surveillance program ruled that: AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

Ouch.


Posted by: Got Irony at February 18, 2008 11:35 PM

Trusting the government is always a mistake, I have to agree. Here you have one branch of the government requesting a favor that another branch of the government wants to punish you for performing; with the third branch sitting in judgment. Meanwhile, the branch asking for the favor really has limited reason to worry about whether its requests are legal or not, because it controls the prosecutors.

For that matter, the judicial and legislative branches aren't at risk either. All three branches are free to gamble, with someone else picking up the tab.

The one at risk is the corporation, who is placed between two fires: should they refuse a request that may put civilian lives at risk, because they're not sure the request (by the police) is legal? Or do they accept the risk of committing a crime (at the request of the police, and in order to protect American lives), and enjoy being hauled into court by political opponents of the police?

It's a wonderful setup.

The one thing that matters is this part:

And if past performance is any indicator, we can quantify the amount of that degradation: about 75%.

The question is, "Can we afford that?" If so, then we can do whatever we'd like; if not, then we have to find a way to fix the problem so that we'll get the intelligence we need.

Ideally, such a method should include mechanisms to protect both citizen liberty (including privacy) and the corporations being tasked by the government to work for them.

If we could also work out a way to bring some accountability to the various branches of the government, I'd love to hear that too. I'm getting increasingly tired of their treatment of these issues as if they were a sort of sport, where the score is measured, only, by control in Washington.

Posted by: Grim at February 19, 2008 05:26 AM

Agreed Grim. The real issue is whether there will be a degradation of information. Without passage of the PAA, we revert to the current FISA provisions that were signed into law by Presdient Bush in 2001 and hailed by him as follows:

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology.

For 7 years we've been operating under the bill Bush signed into law yet today we're told it is insufficient because it does not provide retroactive immunity to the telecoms. What am I missing? Not much if we listen to the words of Minority Leader Mitch Mcconnell

NPR: Mr. McConnell, the Bush administration says that if the Protect America Act isn't made permanent, it will tie your hands, intelligence hands, especially when it comes to new threats. But isn't it true that any surveillance underway does not expire, even if this law isn't renewed by tomorrow?

MCCONNELL: Well, Renee it's a very complex issue. It's true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time-frame. However, that's not the real issue. The issue is liability protection for the private sector.

Duh.

Posted by: Got Irony at February 19, 2008 11:09 AM

Trusting the government is always a mistake, I have to agree. Here you have one branch of the government requesting a favor that another branch of the government wants to punish you for performing; with the third branch sitting in judgment. Meanwhile, the branch asking for the favor really has limited reason to worry about whether its requests are legal or not, because it controls the prosecutors.

Well, Grim is absolutely right. Trusting the government is always a mistake.

For that matter, the judicial and legislative branches aren't at risk either. All three branches are free to gamble, with someone else picking up the tab.

Exactly. After 9/11, everyone was asking "How could this have happened?" And in fact, the smoking gun points directly at FISA:

In 2002, FBI lawyer Colleen Rowley was named one of Time magazine’s “persons of the year” for her scathing memo to FBI Director Robert Mueller exposing incompetent senior FBI lawyers who had refused to even request a FISA warrant she had sought so the contents of Zacharias Moussaoui’s laptop computer could be examined and the 9/11 attacks perhaps prevented. In reality, Rowley was repeatedly told that a FISA warrant was not a lawful option because Congress had failed to anticipate the threat of a “lone wolf” terrorist like Moussaoui, who was not technically an “agent” of al Qaeda. In addition to blatantly usurping the President’s constitutional power, Congress had made it a felony for our intelligence professionals to engage in the kind of effective surveillance of foreign terrorists that might have prevented the 9/11 attacks.

ref: http://communities.justicetalking.org/blogs/day30/archive/2007/10/30/fisa-and-the-mukasey-hearings.aspx

And then are the procedural issues associated with FISA:

... to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda Agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, Agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of Agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda Agent A is captured in Afghanistan and has Agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to Agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring Agent C just because he landed on U.S. soil?


http://www.opinionjournal.com/editorial/feature.html?id=110007848

Posted by: Cassandra at February 19, 2008 11:40 AM

Perhaps that if we don't give the intelligence community the tools to do the job, and American corporations some protection against frivolous lawsuits, the quantity and quality of our the intelligence we collect is going to be degraded.

Hey, so long as it is other people's kids dying, it doesn't matter much to the majority of Democrats.

Posted by: Ymarsakar at February 19, 2008 03:24 PM

I'm getting increasingly tired of their treatment of these issues as if they were a sort of sport, where the score is measured, only, by control in Washington.

All politics are local.

Which, of course, is why democracies and republics often fall to internal revolt or external invasions.

You can't really blame the politicians, Grim. They are only doing as the terrorists are doing with children. If blowing them up works... why not do it?

Posted by: Ymarsakar at February 19, 2008 03:47 PM

Ah, but you don't ask questions like that, do you? Because the answers are damned uncomfortable.

Hey, so long as he is alive and you are dead, it doesn't really matter whether he asks you any questions. Dead men, and women, don't tell tales and they sure as heck don't answer questions.

Posted by: Ymarsakar at February 19, 2008 03:50 PM

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