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Hear No Evil

Are House Democrats serious about national security?

Mar 3, 2008, Vol. 13, No. 24 • By MATTHEW CONTINETTI
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On February 16, last year's bipartisan legislation governing the collection of foreign intelligence and protecting from liability all persons who comply with federal directives to assist in such collection--the law otherwise known as the "Protect America Act of 2007"--expired, having exhausted its six-month, 15-day statutory lifespan. At which time the federal government's ability to pursue suspected terrorists and emerging threats was dealt a serious blow. You can thank House Democrats for the whole sorry mess.

The Democratic leadership denies this, of course, having adopted an Alfred E. Neuman "What, Me Worry?" approach to national security. The lack of a new statute "does not, in reality, threaten the safety of Americans," protests Senate majority leader Harry Reid. The Foreign Intelligence Surveillance Act of 1978 still applies. Says Senator Richard Durbin of Illinois, "The FISA law--even if we do not change it--gives ample authority to this president to continue to monitor the conversations of those who endanger the United States." Says House Intelligence Committee chairman Silvestre Reyes: "We cannot allow ourselves to be scared into suspending the Constitution." Democratic national-security-adviser-in-waiting Richard Clarke writes that "FISA has and still works as the most valuable mechanism for monitoring our enemies."

It is true that the wiretaps granted under the Protect America Act may be continued for a year from their date of issue. If a wiretap was approved on December 5, 2007, for example, it legally can remain in place until December 5, 2008. But any new wiretaps the government seeks will have to go through stringent FISA procedures, which require the government to show "probable cause" that a "U.S. person" is a "foreign power" or an "agent of a foreign power" before a search warrant targeting him can be issued. And this is troubling because--pace Richard Clarke--the old FISA didn't and doesn't work.

Let's review what brought us to this impasse. Back in December 2005, the New York Times reported that, "months after the Sept. 11 attacks," President Bush "secretly authorized" the National Security Agency (NSA) to "eavesdrop on Americans and others inside the United States" in order to gather intelligence "without the court-approved warrants ordinarily required for domestic spying." Now, the NSA's Terrorist Surveillance Program wasn't so secret, it turns out; select members of Congress, Democratic and Republican, had been informed of its existence long before the Times's blockbuster report, and none of them seemed to have had a problem with it.

It turns out, further, that the NSA wasn't spying on Americans willy-nilly. Most of the warrantless surveillance targets were foreign nationals located overseas, though the program also surveilled the 500-odd people in the United States with whom those overseas targets were communicating. Nor was it at all clear whether or not FISA superseded the president's plenary, constitutional authority to "protect and defend" the United States from attack. No court has ever said so. And no administration, including Carter's and Clinton's, has ever accepted FISA as determinative of its constitutional power.

But that didn't matter. Congressional Democrats called the program "illegal." For a while, the president fought back, but 2005 turned into 2006, the year the Democrats took Congress. The Bush administration was weak. And so, for better or worse--okay, for worse--the president decided he was no longer in a position to engage in a public assertion of executive authority. The process was submitted to the authority of the FISA court and its 11 rotating judges. And it was only a matter of months before the system began to degrade.