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
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,
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
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?