President Bush, in his radio address today, blasted Democrats for not extending a the Protect America Act (PAA) that authorizes the surveillance of terrorist activity without a warrant. The Dems show once again their lack of concern for our safety and national security.
Good morning. At the stroke of midnight tonight, a vital intelligence law that is helping protect our nation will expire. Congress had the power to prevent this from happening, but chose not to.
The Senate passed a good bill that would have given our intelligence professionals the tools they need to keep us safe. But leaders in the House of Representatives blocked a House vote on the Senate bill, and then left on a 10-day recess.
Some congressional leaders claim that this will not affect our security. They are wrong. Because Congress failed to act, it will be harder for our government to keep you safe from terrorist attack. At midnight, the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad. This means that as terrorists change their tactics to avoid our surveillance, we may not have the tools we need to continue tracking them — and we may lose a vital lead that could prevent an attack on America.
In addition, Congress has put intelligence activities at risk even when the terrorists don’t change tactics. By failing to act, Congress has created a question about whether private sector companies who assist in our efforts to defend you from the terrorists could be sued for doing the right thing. Now, these companies will be increasingly reluctant to provide this vital cooperation, because of their uncertainty about the law and fear of being sued by class-action trial lawyers.
For six months, I urged Congress to take action to ensure this dangerous situation did not come to pass.
Andrew McCarthy further explains the Democrats sleight of hand in claiming that survelliance isn’t all gone.
The PAA permitted, without court authorization for up to one year, surveillance of foreign targets outside the U.S. who were communicating with other foreigners outside the U.S. The PAA was passed in August 2007 with a six-month sunset provision (which expires at midnight). But the end of the PAA does not mean the immediate end of all surveillance authorized by the PAA.
Let’s say we started surveillance on Pakistani Suspected Terrorist A on December 1, 2007. The PAA provides that even if the PAA sunsets, any surveillance authorized under it may continue for the full year from the start date of the surveillance. Thus, to the extent Democrats are saying the PAA’s expiration would not affect the monitoring of Pakistani Suspected Terrorist A, they are correct — that surveillance may continue through November 30, 2008.
But here’s the problem: What if, tomorrow, for the first time, Pakistani Suspected Terrorist B comes on our radar screen — to say nothing Pakistani Suspected Terrorists C though ZZZ? Let’s say, as is entirely possible (if not likely), that B & Co. are not necessarily affiliated with al-Qaeda or any currently known terrorist group. Starting tomorrow, there will be no PAA authority to begin monitoring those suspected terrorists.
To that rather obvious point, leading Democrats counter, “Wait just a second — you can still go to the FISA court.”
Right.
Can you see what’s happening here? The whole reason Congress enacted the PAA in the first place is because FISA was never meant to apply to foreigners outside the U.S. communicating with other foreigners outside the U.S. We are not supposed to need court authorization for that. We are not supposed to have to write affidavits, approved by the attorney general and others, demonstrating probable cause that such people are agents of foreign powers — as well as demonstrating that other alternative investigative techniques would not yield the same intelligence.
Those are protections afforded by the FISA statute. Foreigners outside the U.S. are supposed to be outside the protection of the FISA statute, just as they are outside the protection of the Constitution. Saying the government can go to the FISA court is no answer: Government is not supposed to have to go to the FISA court. These people are not supposed to have FISA rights. They are not supposed to have Fourth Amendment rights.
We are talking about thousands upon thousands of communications, totally outside the U.S. (in the sense that no person inside our country is a participant) which the intelligence community used to be able to intercept and sift through without any burdensome judicial procedures whatsoever. That is how FISA was written, and that is how FISA was understood for almost 30 years. Then last year, a secret FISA-court ruling attempted to bring all those communications under FISA-court control — apparently on the theory that, because some digital bits of these conversations may zoom through U.S. hubs in global telecommunications networks, somehow a conversation between a guy in Pakistan and a guy in Afghanistan should now be considered a U.S. wire communication.
But FISA was not intended to protect Pakistanis and Afghans. It was intended to protect people inside the U.S. from being subjected to national-security surveillance absent probable cause that they were acting as foreign agents.
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