Nancy Pelosi and the House Democratic leader can’t say they haven’t been warned. In fact, you even might say they warned themselves of the dark consequences of allowing the Protect America Act to expire.
After all, there would be no law to expire if Pelosi and her House Democrats hadn’t passed it into the law last summer. They understood the Foreign Intelligence Surveillance Act (FISA) had to be reformed and updated or our ability to gather intelligence on overseas terrorists would be degraded. That’s why they didn’t leave town last summer without passing the Protect America Act.
At midnight Feb. 16, however, the act expired, exposing the nation to the same dangers Pelosi and House Democratic leaders addressed six months earlier. Where were Pelosi and crew? On vacation, after refusing to approve a permanent FISA compromise that had enough Republican and Democratic votes to pass the House. On vacation, while our spy agencies delay new intelligence gathering or miss fresh information and terrorists plot to massacre Americans.
President Bush was worried enough about national-security damage to compromise on the legislation. The Democratic Senate was worried enough to pass a permanent FISA reform, 68-29.
About three dozen House Democrats thought so, too. They urged Pelosi to let the Senate bill come up for a vote, but she would not budge. She sent the House on holiday and let the law die.
What does her action mean for U.S. surveillance policy? One, we’ve now extended U.S. privacy protections to foreign terrorists overseas. Two, telecom companies that cooperated with the government after 9/11 or agree to in the future will face lawsuits for helping trace terrorist communications. Don’t Pelosi and company have all this exactly backward?
Say you’re in a hitherto unidentified terror cell operating in Afghanistan and calling someone in Germany to plot the next 9/11. Your call goes through the United States. Our agencies pick up your call while searching out foreign jihadists. Right now, today, thanks to a FISA court ruling and Pelosi’s decision to let the act die, our spies cannot keep listening in on your chat. Instead of connecting the dots, they’ll first have to go to the FISA court and meet the same “probable cause” standard needed to authorize surveillance of U.S. citizens here at home.
Or, say you’re a U.S. telecom company ready to help our government trace overseas terrorist communications. But do you really want to expose your company to lawsuits for doing something patriotic?
What does all this mean in practical terms? Plenty, say the officials who work on these issues.
“We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act,” Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell wrote in a Feb. 22 letter to House Intelligence Committee Chairman Silvestre Reyes.
Reyes is among those who claim the House’s inaction hasn’t hurt us at all. But the two Michaels schooled him on the impracticalities of applying the “probable cause” standard to overseas terrorists. Along with the delays and missed intel, the “probable cause” requirement means our linguists and analysts will spend their time putting together detailed information for these FISA court applications. Mukasey and McConnell would rather have them protecting Americans from foreign operators.
But can’t our agencies use FISA’s emergency provisions to start monitoring immediately? That’s Reyes’ claim, and it sounds nifty, but it doesn’t work that way in the real world. “[I]t would be illegal to proceed as you suggest,” they wrote. “Before surveillance begins the attorney general must determine that there is probable cause that the target . . . is a foreign power and that FISA’s other requirements are met.”
This takes time and resources, which is why emergency authorizations “cannot simply be employed for every foreign intelligence target.”
The two officials also note that the Protect America Act led to the “disruption of planned terrorist attacks.”
Nancy Pelosi’s House should consider it a warning.
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