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In Which My Head Explodes

February 15th, 2008 · 1 Comment

I heard the following exchange on Morning Edition a couple of hours ago:

Renee Montagne: The bush administration says that if the Protect America Act—that’s this surveillance act that’s temporary at the moment—if it 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 that’s underway doesn’t expire even if this law isn’t renewed by tomorrow?

Director of National Intelligence Mike McConnell: Rene, it’s a very complex issue. It’s true that some of the authority would carry over for the period they were established for—one year—that would put us in the August/September time frame. However, that’s not the real issue. The issue is liability protection for the private sector. We can’t do this mission without their help. Currently there is no retroactive liability protection for them. They’re being sued for billions of dollars. So the board’s fiduciary responsibility causes them to be less cooperative.

Actually, it’s good to see the media starting to step up and call bullshit on the mountain of falsehoods that constitutes the case for the Senate FISA bill. But it’s almost depressing to see how little it takes—and how little it might have taken a few weeks ago—to force them to back off and admit that the current debate isn’t really about any imminent threat to national security. Rather, it’s about ensuring that the next time the government feels like breaking the law—despite he vast new powers Congress is preparing to hand them—they won’t have to worry about jumpy telecom executive insisting on such niceties as “court orders” or “statutory authority.”

Still, it would have been nice if McConnell could have told folks like Sen. Kit Bond what the “real issue” was before Bond began shrieking that “If we don’t pass this bill and get it signed by the President this week, our intelligence community will go blind and deaf to new terrorist communications coming in which are identified after February 15th.” Or he might have passed a note to his namesake Mitch before the Senate Minority Leader brayed that we were “flirting with disaster” because we were “days away from a situation in which the Intelligence Community will be unable to freely monitor new terrorist targets overseas.”

It’s true that new authorizations could no longer be issued. But recall what “authorizations” look like under the Protect America Act. The Attorney General “is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.” And on a literal reading, nothing in the bill limits authorizations to specific known or named targets. Rather, the AG and the DNI may “authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States,” where “persons” is a legal term of art encompassing corporate entities like, say, al-Qaeda. With language this broad, the only way a “new” terrorist threat would arise that could not be shoehorned into an existing intercept authorization is if disgruntled Walloons form the Belgian Liberation Front and begin assaulting the American Homeland with suicide waffles. And if they do, traitorous Democrats will no doubt deny our brave intelligence professionals the whipped cream they need to keep us safe.

Tags: Privacy and Surveillance



1 response so far ↓

  • 1 Nick // Feb 15, 2008 at 3:00 pm

    My least favorite thing about this whole debacle is how it makes the original FISA laws seems perfectly reasonable. I wasn’t a fan of the ridiculously permissive foreign surveillance laws in the first place, but now there’s basically no chance of getting rid of those for a generation.

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