June 13, 2011 | National Review Online
When the Clock Strikes Midnight, We Will Be Significantly Less Safe
The Democrats' FISA talking points are nonsense.
According to top Democrats, the expiration of the Protect America Act (PAA) when the clock strikes midnight Sunday is no big deal. Our ability to monitor foreign threats to national security, they assure us, will be completely unaffected.
This is about as dumb a talking point as one can imagine. And it is just as demonstrably false.
Think for a moment about Tuesday’s crucial Senate bill overhauling our intelligence law that Speaker Nancy Pelosi refused to allow the House to consider before recessing Friday — for a vacation. (Democrats evidently had no time for national security, having exhausted themselves on such cosmic matters as a baseball pitcher’s alleged steroid use and unenforceable, unconstitutional contempt citations in a stale investigation into something that wasn’t a crime and that no one but MoveOn.org cares about any longer).
In a Senate controlled by the Democrats, the bill passed by an overwhelming 2-to-1 margin. To attract such numbers, the Bush administration (as I detailed yesterday) gave ground on critically important issues of executive power and expansion of the FISA court’s role.
Democrats surely did not want to give President Bush this legislative victory, and President Bush certainly did not want to cave on these issues. But both sides compromised precisely because they understood that failing to do so, failing to preserve current surveillance authority, would endanger the United States.
Now, maybe they did it because they didn’t want to be blamed if something catastrophic happened; I prefer to think it was because they felt it their obligation to prevent something catastrophic from happening. But either way, the certainty that a failure to act would mean an exorbitant increase in the odds of catastrophe clearly weighed on both sides.
That is why so many Senate Democrats went along. That is why Democrats in both houses agreed to the PAA in the first place. That is why 34 House Democrats defied their leadership on Wednesday, voting against another temporary extension of the PAA in an effort to force a vote on the Senate bill — which, had Pelosi allowed it to come to the floor, would have become law by a healthy bipartisan margin.
If the expiration of the PAA made no difference, as top Democrats are speciously claiming now, there is not the remotest chance any of those things would have happened.
So how can they make such an argument? Here is the sleight of hand.
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.”
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.
Requiring FISA compliance for foreign-to-foreign communications does not protect anyone inside the U.S. It protects non-Americans, some of whom will be terrorists and none of whom is entitled to any protection under American law. It makes it impossible for the intelligence community to monitor all the foreign-to-foreign communications that we used to monitor because we will never be able to show, for every target, probable cause that he is an agent of a foreign power — as FISA requires. The PAA did not call for that; it simply required a certification that we were monitoring people believed to be outside the United States.
The claim that the expiration of the PAA will not open a huge gap in surveillance coverage is laughable. Right now, we are permitted to collect foreign-to-foreign communications absent probable cause that the target is an agent of a foreign power. As of 12:00 A.M., we will no longer be permitted to do that. It is absurd to suggest that this huge drop-off in collection will have no impact on our security.
The July 2007 National Intelligence Estimate stated:
globalization trends and recent technological advances will continue to enable even small numbers of alienated people to find and connect with one another, justify and intensify their anger, and mobilize resources to attack — all without requiring a centralized terrorist organization, training camp, or leader.
Translation: There are ever larger numbers of potentially hostile operatives who are galvanized by jihadist ideology without necessarily being connected to a known terrorist organization. Casting a broad surveillance net to collect intelligence overseas is how we detect and thwart any threat they may pose. It’s how we protect Americans in the homeland and on the battlefield.
As of midnight, that net is gone.
— Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.