Why Allowing the Protect America Act to Expire Makes Us Less Safe


Excellent rundown of how the Democrats have made our country less safe by allowing FISA to lapse from the Director of National Intelligence Mike McConnell, who, as he pointed out in the interview, has worked with both parties in various intelligence capacities for over 40 years but now is being labeled as partisan: (h/t Hot Air)

A partial transcript:

WALLACE: Well, let me ask you about that. We’ll get to the telecoms in a moment. Let me ask you first, though, as you pointed out at the beginning, under the law that was passed in August, you had the ability, and you exercised that, to issue orders that allowed you to monitor terrorism suspects — communications involving alleged terrorist groups.

The law has expired as of midnight. But those orders to monitor are valid for a year, so they stay on the books and allow you to monitor them till at least August.

And the argument the Democrats make is that if there’s somebody new that springs up, some new group that you haven’t already covered, that you can go after them over old existing law. So they argue you haven’t lost any operational capability.

MCCONNELL: Chris, last summer we were in extremis, because we had lost under the old law about two-thirds of our capability.

The issue is it’s very dynamic, and the FISA court had ruled…

WALLACE: When you say dynamic, you mean that new groups are springing up, new possible targets?

MCCONNELL: New information, new personalities, new methods of communicating.

So when the program was returned to the FISA court in January of ’07, initially we had coverage that we had asked for, but over time, because technology had changed and the law of ’78 — it had not been changed, because technology had gone from a wireless world to a wired world.

Foreigners communicating in a foreign country — more than likely the communications would pass through the United States. Therefore, the court said if it touches a wire, consistent with the law, you have to have a warrant.

Now, a warrant means probable cause, which is a very time- consuming process to go through. So we were in that situation last summer. We passed the new act to make it — improve our situation. That act has now expired.

WALLACE: Isn’t the central issue here that you’ve lost your power to compel telecommunications companies to cooperate with you and also your ability to offer them legal immunity?

Again, the Democrats would say, “Look, if the cooperation is legal, they don’t need legal immunity.”

MCCONNELL: Exactly right. The issue now is there’s uncertainty because the law has expired and the law of August, the Protect America Act, allowed us to compel — compel — support from a private carrier. That’s now expired.

So we can make an argument to a court but, you see, that makes my point. If I’m in court arguing for an authorization, then I’m missing a dynamic situation.

WALLACE: So just to summarize this, how — would you say that the country is in great — greater danger now of terrorist attack because this law has expired?

MCCONNELL: Increased danger, and it will increase more and more as time goes on. And the key is the — if you think about the private sector global communications, many people think the government operates that.

Ninety-eight percent of it is owned and operated by the private sector. We cannot do this mission without help and support from the private sector. And the private sector, although willingly helped us in the past, are now saying, “You can’t protect me. Why should I help you?”

Chris, could I just read something I think is very important for the American people to know? This issue of liability protection — what I’m going to quote from is the Senate report when they debated the Senate bill for improving this law, if I could.

This is with regard to private sector immunity. “Indeed, the intelligence community cannot obtain the intelligence it needs without the assistance of these companies. Given the scope of the civil damage suits and the current spotlight associated with providing any assistance to the intelligence community, the community was concerned without retroactive immunity the private sector might be unwilling to cooperate with a lawful request from the government in the future without unnecessary court involvement and protracted litigation.”

That’s the issue. We go back into protracted litigation and debate, as opposed to being dynamic.

Andy McCarthy:

As of midnight this morning, intelligence gathering powers are now back to where they were before the Protect America Act was passed in August 2007. At that time, according to McConnell, we had lost about two-thirds of our overseas collection capacity because of the FISA court ruling which, for the first time in history, required court authorization for monitoring foreigners outside the U.S. who contact other foreigners outside the U.S.

The Protect America Act reversed that ruling for six months. It is now expired. We cannot collect on new targets overseas without going to the FISA court and showing probable cause that the target is an agent of a foreign power. As foreigners outside the U.S. have no U.S. legal protection (or at least didn’t until the FISA court ruling), and as the federal courts have no jurisdiction outside the U.S., we are not supposed to have to make any showing whatsoever to collect intelligence overseas.

When you go from no restrictions to no collection absent probable cause, that represents an enormous drop off in capacity. It’s that simple.

With the expiration of the act now they have to get a court approval for any new intelligence lead, which is not the way to do things in a dynamic, fluid situation. Why tie the hands of our intelligence agencies at a time of very great risk? Look, FISA was pushed through in the 70’s to prevent the intelligence agencies from conducting electronic surveillance of American citizens without a warrant. No warrant was required for a foreign target in a foreign land. Now a warrant is required for it all, which in this day and age of instantaneous communication makes absolutely no sense whatsoever. But we all know the answer to this one, politics. The safety of our country be damned.

Here is McConnell last August explaining in a bit more detail the process:

Q: Can’t you get the warrant after the fact?

A: The issue is volume and time. Think about foreign intelligence. What it presented me with an opportunity is to make the case for something current, but what I was really also trying to put a strong emphasis on is the need to do foreign intelligence in any context. My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire. We haven’t done that in wireless for years.

Q: So you end up with people tied up doing paperwork?

A: It takes about 200 man hours to do one telephone number. Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it’s foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it’s a very complex process, so now, I’ve got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on. And now you’ve got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number. We’re going backwards, we couldn’t keep up. So the issue was …

Q: How many calls? Thousands?

A: Don’t want to go there. Just think, lots. Too many. Now the second part of the issue was under the president’s program, the terrorist surveillance program, the private sector had assisted us. Because if you’re going to get access you’ve got to have a partner and they were being sued. Now if you play out the suits at the value they’re claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. So we went through that and we argued it. Some wanted to limit us to terrorism. My argument was, wait a minute, why would I want to limit it to terrorism. It may be that terrorists are achieving weapons of mass destruction, the only way I would know that is if I’m doing foreign intelligence by who might be providing a weapon of mass destruction.

Q: And this is still all foreign to foreign communication?

A: All foreign to foreign. So, in the final analysis, I was after three points, no warrant for a foreigner overseas, a foreign intelligence target located overseas, liability protection for the private sector and the third point was we must be required to have a warrant for surveillance against a U.S. person. And when I say U.S. person I want to make sure you capture what that means. That does not mean citizen. That means a foreigner, who is here, we still have to have a warrant because he’s here. My view is that that’s the right check and balances and it’s the right protection for the country and lets us still do our mission for protection of the country. And we’re trying to fend off foreign threats.

Allowing this act to expire was another shameful episode in the long and storied shameful past of the Democrats.

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