To show their audacity, the Democratic leadership wrote an op-ed in the Washington Post accusing the President of Fear-Mongering because he said that our national security is in danger as long as FISA is being held up by the house. The silly part is one of the articles authors said the same thing as the president just two weeks ago.
Top Democrats Spout Nonsense on Intelligence Reform
Fear is not caused by administration rhetoric; we are genuinely less safe.
By Andrew C. McCarthy
The Democratic leadership on Capitol Hill has circled the wagons in defense of the party’s determination to roll the dice with American national security.
Senators Jay Rockefeller and Patrick Leahy joined Representatives Silvestre Reyes and John Conyers in penning a fatuous op-ed in the Washington Post Monday. The four are chairs of the intelligence and judiciary committees of, respectively, the Senate and House. They claim that the White House is engaged in fear-mongering when it decries the failure of House Democrats to enact a reform measure that would have preserved essential intelligence-collection authority — a bill that passed in the Democrat-controlled Senate by an overwhelming two-to-one margin and would similarly sail through the House if Speaker Nancy Pelosi would allow it to come to the floor.
The op-ed marks a dramatic shift for Rockefeller. The West Virginia Democrat championed the Senate bill, which was voted out of his committee by a 13-2 landslide. As recently as February 14, he was quite candid in acknowledging that the consequence of allowing the Protect America Act (PAA) to lapse, as it did a little over a week ago when House Democrats refused to act, would be “degraded” intelligence-collection capacity.
Now, however, with his fellow Democrats getting hammered as unserious about protecting American lives, it’s evidently time to close ranks. Rockefeller has suddenly joined the “Everything Is Beautiful” chorus that claims the sun’s setting on the PAA is really no big deal since any security gaps can still be filled by FISA — the ill-conceived, obsolete Foreign Intelligence Surveillance Act of 1978.
But the chorus is unconvincing and the lawyerly strains of the lawmakers’ own words give the game away. Note the strategic insertion of the word known (which I italicize below), as they claim that
our country did not “go dark” on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush’s overheated rhetoric on this issue, the government's orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately.
Yes, as has been freely conceded by the administration and critics of the House Democrats’ dereliction, even though the PAA has lapsed, any surveillance directives that have been approved since it was enacted last August may continue to run for one year from the date they began. That helps us with all the terrorist groups we already know about. Moreover, these directives — which are classified, so we don’t know exactly what they say — apparently feature anticipatory triggers which permit newly identified operatives to come under surveillance if they are tied to known terrorist groups. Thus, there is authority for the next few months for monitoring some new players.
But not all new players. If new groups emerge, the previously issued PAA directives will not permit surveillance of them and their operatives.
And new groups are emerging all the time — highly capable new groups. Recent intelligence estimates indicate that just in the Afghanistan/Pakistan border region, nearly a quarter million men have received some measure of paramilitary training in jihadist camps. Does anyone really think we have a handle on more than a bare fraction of these potential threats?
There is usually no requirement that these men join al-Qaeda or the Taliban in order to get the training. Many of them come from afar and take what they’ve learned back home to Europe, Northern and Eastern Africa, the Indian subcontinent, South and Central America, Canada, and even the United States. They recruit and train their own new cells — which are unknown to our intelligence community.
Furthermore, even without the mediating influence of known terrorist organizations and their training facilities, radicalization is a worldwide phenomenon. As I’ve previously noted, the July 2007 National Intelligence Estimate stated:
globalization trends and recent technological advances will continue to enable even small numbers of alienated people to find and connect with one another, justify and intensify their anger, and mobilize resources to attack — all without requiring a centralized terrorist organization, training camp, or leader.
We need aggressive, uninhibited surveillance authority to ferret out such people. Aggressive uninhibited surveillance authority is what we had under the PAA because it returned FISA to its original understanding: namely, that (a) Americans inside the United States should not be surveilled as potential national-security threats unless the government can demonstrate probable-cause that they are acting as foreign agents; but (b) aliens outside the United States are entitled to no protection under American law and could thus be monitored by the U.S. intelligence community for any reason or no reason.
With the lapse of the PAA, though, FISA no longer has its original understanding. Thanks to a sea change judicially legislated by the very FISA court at whose mercy the Democratic leadership would leave our security, U.S. privacy rights have now been extended to terrorists overseas. The intelligence community is no longer permitted to eavesdrop overseas without limitation. So, if a previously unidentified terrorist cell in Iraq kidnaps an American marine, or if a previously unknown jihadist group is planning the next 9/11 in Peshawar or Hamburg or Madrid, Rockefeller, Leahy, Reyes, and Conyers think it’s perfectly fine that no American surveillance be permitted unless a federal judge in Washington approves it.
Well, it may be perfectly fine with them, but it will not be perfectly fine with most Americans. The FISA court may not authorize surveillance unless the government shows probable cause — a courtroom proof standard — that its target is a foreign agent. Indeed, the government must not only prove probable cause; it must also demonstrate that high-level executive branch officials have been consulted and have assented to the need for eavesdropping, and that there are not less intrusive alternatives for obtaining the desired information (we would not, after all, want to tread unnecessarily on the privacy rights of, say, an Egyptian jihadist in Baghdad).
Not to worry, the top Democrat lawmakers tell us. The FISA court “has approved nearly 23,000 warrant applications and rejected only five” since its creation in 1978. If that isn’t sleight of hand, I don’t know what is.
First, as noted above, the FISA court only gets applications when we already have “probable cause.” Until 2007, however, when the selfsame FISA court suddenly rewrote 30 years of law and practice, probable-cause was never our standard for collecting intelligence overseas. That’s because having “probable cause” means you already know someone is a danger. What we try to do overseas — or, at least, what we used to try to do overseas before the FISA court assumed the law-writing and intelligence-management jobs of the other branches — is figure out who may be a danger. Especially when our current intelligence gap involves previously unknown terrorist groups, it is absurd to hamstring surveillance coverage with a probable-cause burden — if we had probable cause, the threat wouldn’t be unknown.
Second, it should come as no surprise that there is a very high rate of approved FISA applications. Intelligence-gathering is an executive function, not a judicial function. Under the Constitution, the executive branch only needs reasonable suspicion to conduct national security surveillance inside the U.S., and does not need any justification for conducting such surveillance outside the United States. Thus, there should never be a time when the FISA court denies an application if the executive branch appears to have probable cause.
Third, while the FISA court routinely authorizes applications for surveillance, it has — particularly since 2002 — taken to “modifying” many executive branch requests. The applications and orders are classified, so we do not know what limitations on surveillance these modifications may entail.
Fourth, it is worth mentioning 2002 because that was the year the FISA Court of Review — in its only ever known ruling — had to step in and reverse the FISA court. Why? Because that tribunal attempted by judicial fiat to rebuild the infamous “wall” which prevented intelligence agents from communicating with criminal investigators and prosecutors pursuing terrorism cases. That wall was the culprit in the last lost opportunities the FBI had to uncover the 9/11 plot.
While there was vigorous debate over many aspects of the 2001 Patriot Act, there was genuine consensus that the wall had to come down so that information could be shared and dots connected. It is simply breathtaking that the FISA court — elevating due process for suspected terrorists over national security — sought to resurrect it even as the memory of the suicide hijackings was fresh.
That was the FISA court’s most notable endeavor until last year, when it altered intelligence-collection law so radically that National Intelligence Director Michael McConnell says our capacity was degraded by two thirds.
In sum, it was the FISA court that created the crisis which induced Congress to enact the PAA last August. And now that the PAA is gone, the leading congressional Democrats would have us believe we have nothing to fear because the FISA court will protect us.
Don’t you feel better?
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