FISA: The Consequence of Delay

By February 23, 2008Briefly Legal, Communications

From a letter (.pdf here) from Director of National Intelligence Mike McConnell and Attorney General Michael B. Mukasey to Rep. Silvestre Reyes, chairman of the House Intelligence Committee.

We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act. Because of this uncertainty, some partners have reduced cooperation. In particular, they have delayed or refused compliance with our requests to initiate new surveillances of terrorist and other foreign intelligence targets under existing directives issued pursuant to the Protect America Act.

House Majority Leader Steny Hoyer’s response to those assertions is revealing. In a statement, Hoyer says:

[The] Bush Administration repeated its assertion today that the expiration of the Protect America Act has resulted in intelligence gaps. If this is true, then it was grossly irresponsible for the President to threaten to veto and Congressional Republicans to vote against a PAA extension and any intelligence gap would be one of their own creation. Again, if Republicans truly believe gaps are created by a PAA expiration, they should support a temporary extension and join us in quickly crafting a strong, bipartisan FISA modernization bill that represents the best of the House and Senate passed bills.

Those are two awfully consequential “ifs.” They acknowledge as credible the argument that intelligence is being harmed by the House’s inaction on foreign intelligence surveillance authority. (As did the more than 20 House Democrats who disagreed with their leadership’s handling of the legislation.) And, after all, does anyone in a responsible position of power think that McConnell and Mukasey are lying?

Once you concede the Administration’s case as likely or at least legitimate — as Hoyer has — then the rest of the rhetoric is just politics, positioning for voters and anti-surveillance constituencies. What’s need isn’t rhetoric, what’s needed is authority to effectively monitor foreign communications of suspected terrorists. What’s needed isn’t politics, but immunity for good corporate citizens who acted responsibly in assisting in the prevention of Americans being massacred by terrorists.

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