The Senate passed the renewal of the Protect America Act with 68 votes, and the Act will pass in the House if Nancy Pelosi and the Democratic leadership allow it to be voted on. So far, however, they have successfully blocked a vote in the House. They have thus advanced the interests of their patrons, class action plaintiffs' lawyers, at the expense of national security.

Today two senior officials, one from the intelligence community and one from the Department of Justice, gave a press briefing to explain the importance of renewing the Act. It was an impressive performance, but one not likely to see the light of day in the mainstream media. This is a simple statement of the rationale underlying the Protect America Act:

What's lost in this debate is that there is sort of a good, common-sense basis to the Protect America Act and the legislation that we want to see made permanent.  And it is basically what [my colleague] described, that FISA if you take -- if you look at the scope of potential surveillances out there, FISA in 1978 was intended to cover this scope, this part of it, which was targeting surveillance within the United States.  Because of the change in technology, it started to creep out and cover the whole field.  So Congress -- and I think there is a consensus on this  -- said, wow, we need to bring it back to what we originally intended; we shouldn't be giving Fourth Amendment protections to terrorist suspects overseas.

Some Democrats have argued that it is unnecessary to extend the Act because the original FISA statute is adequate. This came up in today's press conference:

Q    And if you needed that new directive -- the FISA court would always still be available, right, in typical court order route? 

SENIOR ADMINISTRATION OFFICIAL:  Right.  Okay, excellent.  The answer is, no.  And this question, if I may rephrase a little bit is, well, you could just use the FISA court.  We've seen that debate out there -- you just go to the FISA court and get an order.  Remember what [my colleague] described:  Under the Foreign Intelligence Surveillance Act, we have to go to the FISA court and make a number of showings.  One of those is a probable cause showing, under the Fourth Amendment. 

These are not things that are done quickly, necessarily.  This kind of gets back to the debate of last summer, before the Protect America Act expired, which was, do we take our operators, our linguists, our analysts -- we're always asked, do you have enough people who speak the right languages; do you have people who understand the cultures -- should I pull them off of their mission to write a thick application, court application, making this probable cause showing, and then go to court for individual surveillances on foreign targets abroad?  We simply cannot do that as an intelligence community.  Certainly that was part of the huge problem last summer, where we were caught where the law had not been updated.

Second, should we have to make that probable cause showing?  If you're going to make that -- if you're going to import the probable cause showing that applies here in the United States, and require us to have that same level of information that we use to wiretap somebody here in the United States, or do a physical search of a U.S. citizen, that is not a minor thing to do.  So if you're going to apply that to our foreign targets abroad, that's a huge shift in what we do as a community, and you're changing the level of intelligence information that I need to initiate surveillance on somebody abroad.  You're essentially applying something derived from the Fourth Amendment to our foreign mission.

It was an impressive performance, and some of the journalists asked intelligent questions. In other cases, though, it was a case of pearls before swine. This exchange occurred at the very beginning of the press conference:

Let me start. Foreign Intelligence Surveillance Act of 1978 passed because of the abuses of the 1960s, 1970s, and frankly, prior to even that time frame. There was a balance struck in the 1978 act for the intelligence community, and it said, if you're doing your foreign intelligence mission overseas, you do not need a court order to do that mission. It specifically exempted the international signals intelligence activities that our community does.

Q You mean it said you could break the law?

In order to unravel the multiple levels of ignorance revealed by that question, you would have to send the journalist who asked it back to high school, and go from there. One thing this country needs, is smarter journalists.

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Posted by John at 8:03 PM  |    |