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The "Don't Protect America" Democrats By: Matthew Continetti
The Weekly Standard | Monday, March 10, 2008


It's been three weeks since Democrats in Congress allowed the Protect America Act of 2007 to expire. Three weeks in which House Democrats have allowed marginal special interest groups veto power over national security legislation. And no one in the House Democratic leadership seems particularly bothered by it.

Without a new law, intelligence professionals have to establish "probable cause" that the target of surveillance is a terrorist to the satisfaction of a judge on the court created by the Foreign Intelligence Surveillance Act of 1978 (FISA) before they can intercept the suspect's communications. This is an onerous and unprecedented burden on the intelligence community. FISA court orders were never meant to apply to foreign intelligence missions overseas. The last time U.S. spooks had to rely on FISA court approval to gather intelligence overseas--in the first half of 2007--the backlog of warrant applications quickly grew so thick that America's ability to hear what her enemies were saying was degraded by "70 percent," according to the director of national intelligence, Vice Admiral Mike McConnell. If FISA is not updated, it will be only a matter of time before we reach that point again. Something's gotta give, in other words. And soon.

The good news is that there is bicameral and bipartisan support for a new law, the FISA Amendments Act, which updates the U.S. intelligence community's electronic surveillance procedures and provides immunity to "electronic communication service providers" for cooperating with the government. The Democratic Senate already has passed the law by two to one. The chairman of the House intelligence committee, Texas Democrat Silvestre Reyes, has said he is open to a compromise along the lines of the Senate bill. It is widely expected that the House would pass such a compromise. And President Bush would happily sign it.

And yet: No sooner had the ink dried on Ellen Nakashima and Paul Kane's March 4 Washington Post story--"Wiretap compromise in works"--than House Democrats began to walk away from said compromise. On March 5, House Majority Leader Steny Hoyer said there might be a vote on the new law at the "beginning of next week." On March 6, Speaker of the House Nancy Pelosi said, "We are still working very hard," but House Democrats "are not going to abandon the Constitution." A vote may be put off until after next week's congressional spring break.

Why won't the House leadership bring the FISA Amendments Act to the floor? Democrats provide different reasons. The Capitol Hill publication CongressDaily quotes House Democratic aides who cite the "tight floor schedule" as the reason this necessary and important law has to wait. Yet the House found time for "HR 1143," which approves a lease agreement between the Interior Department and the Caneel Bay luxury beach resort in the U.S. Virgin Islands. (The service is supposed to be fantastic at Caneel Bay, incidentally.)

Other Democrats blame Bush. In a February 25 Post op-ed, the chairmen of the House and Senate intelligence and judiciary committees accused the president of deploying "scare tactics and political games" because he is "desperate to distract attention from the economy and other policy failures" and wants to "use this issue to scare the American people."

All of which is partisan silliness, of course. Truth be told, the Democrats are not scared of Bush anymore. But they are scared of the left, which is adamant that the "electronic communications service providers"--mainly giant telecoms--not be granted immunity from litigation for cooperating with the government on foreign surveillance of terrorists during the years when FISA did not have authority over the program. The left wants the roughly 40 pending lawsuits against the providers to proceed so that--to quote MSNBC "news" anchor Keith Olbermann--the "AT&Ts and the Verizons" will be held accountable "for their systematic, aggressive, and blatant collaboration" with Bush's "illegal and unjustified spying on Americans." Just imagine, Herr Olbermann continues, his bile rising: government ... and business ... working ... together! "What else is this but fascism?"

We don't pretend to be shocked at such arguments from such a source. The imputation of bad faith to the Bush administration and those who agree with it is now so widespread in Washington that spittle-laced histrionics like Olbermann's are par for the course, sad to say. Dispassionate facts are in short supply. But here are a few: The left has been angry for years about Bush's secret program of foreign intelligence surveillance conducted between September 11, 2001, and January 17, 2007, when the president submitted such surveillance to the FISA court for approval. During this time, the government's foreign intelligence collection efforts were known as the "Terrorist Surveillance Program." It was not "illegal." Just because the ACLU and the Electronic Frontier Foundation say it was doesn't make it so. Federal case law has long upheld the president's authority to gather foreign intelligence without warrant. FISA does not trump that authority.

You do not have to take our word for it, either. It was a Democrat, Carter attorney general Griffin Bell, who pointed this out when FISA was created in 1978. It was another Democrat, Clinton's deputy attorney general Jamie Gorelick, later a vice chair of the 9/11 Commission, who made the same point when FISA was amended in 1994.

And there are plenty of Democrats who agree it is fair to grant immunity to the telecoms, too. In an interview last week with National Journal, Barack Obama adviser John Brennan, a former CIA operative, said he believes "strongly" that the telecoms "be granted immunity" and that the "Senate version of the FISA bill addresses the issues appropriately." And the Democratic Senate Intelligence Committee concluded, in the bipartisan findings of its 2007 report on the FISA Amendments Act, that during the Terrorist Surveillance Program's lifespan, "electronic communication service providers acted on a good faith belief that the President's program, and their assistance, was lawful." The Committee went on to write that "electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation's telecommunications system." The "unique historical circumstances" in which the country found itself after sustaining a terrorist attack that killed 3,000 innocent people gave the providers a "good faith basis" on which to cooperate with their government.

Furthermore, writes the Senate Intelligence Committee, "without retroactive immunity" the "private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation." Surveillance might be impeded, in other words. And it isn't too hard to figure out why: Saddled with lawsuits and burdensome discovery, the companies, in the event of a government request for further assistance, probably would start thinking, Fooled me once, shame on me ... won't get burned again. ... That, at least, is the "informed judgment of the committee," as its chairman, the liberal Democrat Jay Rockefeller, wrote in his additional comments.

Not quite "fascism," is it?

Indeed, the caricature of Bush as a lawless villain with a "my way or the highway" attitude is breathtakingly false; the administration has been almost entirely cooperative with Congress on FISA reform, and has already conceded plenty. "The ability of the full committee to perform" its "oversight responsibilities" has been "significantly augmented by improved access to information" provided by the administration, wrote the authors of the Senate report. Committee members "received the cooperation of many officials from the intelligence community and the Department of Justice." They "received many classified briefings, propounded and received answers to many written questions," and "conducted extensive interviews with several attorneys in the Executive branch who were involved in the review of the President's program."

Meanwhile, Bush has agreed, as part of the FISA Amendments Act, to require court approval of surveillance of Americans abroad--a requirement to which no previous U.S. president has ever acceded. He has accepted the new, burdensome reporting requirements contained in the legislation in order to assist in congressional oversight. He has, in fact, done pretty much everything he could do to get Congress to reform FISA and protect the communications providers from lawsuits, short of asking Congress "pretty please with a cherry on top."

But that doesn't seem to be enough. It never seems to be enough. Six of the eight Democrats on the Senate Intelligence Committee supported the FISA Amendments Act. Twenty of the 51 Democrats in the full Senate supported it. Recently 21 state attorneys general wrote a letter urging the Congress to pass the Senate bill. Seven of the signatories were Democrats. There are plenty of House Democrats who would sign a similar letter if given the chance. They agree that reforming FISA and granting the communications providers immunity is the right thing to do. They agree that this debate is about neither politics nor partisanship. Nor is it a debate over executive authority. It really is all about protecting Americans from attack. These Democrats are all members of their party in good standing. Isn't it time Speaker Pelosi listened to them?




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