Playing Politics With National Security

Earlier today, Director of National Intelligence Michael McConnell and Attorney General Michael Mukasey delivered a letter to Silvestre Reyes, the chairman–unfortunately–of the House Intelligence Committee. Their letter responded to a letter by Reyes on February 14 that disputed the urgency of reforming and modernizing FISA. The McConnell/Mukasey letter is devastating to those who, like Reyes, try to claim that no harm is being done by the Democrats’ stonewalling of FISA reform. The letter is lengthy and detailed; I’ve posted all six pages below. (Click to enlarge.) Here are a few excerpts:

In our letter to Senator Reid on February 5, 2008, we explained that: “the expiration of the authorities in the Protect America Act would plunge critical intelligence programs into a state of uncertainty which could cause us to delay the gathering of, or simply miss, critical foreign intelligence information.” That is exactly what has happened since the Protect America Act expired six days ago without enactment of the bipartisan Senate bill. 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.

We have provided Congress with examples in which difficulties with collections under the Executive Order resulted in the Intelligence Community missing crucial information. For instance, one of the September 11th hijackers communicated with a known overseas terrorist facility while he was living in the United States. Because that collection was conducted under Executive Order 12333, the Intelligence Community could not identify the domestic end of the communication prior to September 11, 2001, when it could have stopped that attack. The failure to collect such communications was one of the central criticismas of the Congressional Joint Inquiry that looked into intelligence failures associated with the attacks of September 11. The bipartisan bill passed by the Senate would address such flaws in our capabilities that existed before the enactment of the Protect America Act and that are now resurfacing.

As we have explained in letters, briefings and hearings, FISA’s requirements, unlike those of the Protect America Act and the bipartisan Senate bill, impair our ability to collect information on foreign intelligence agents located overseas. Most importantly, FISA was designed to govern foreign intelligence surveillance of persons in the United States and therefore requires a showing of “probable cause” before such surveillance can begin. This standard makes sense in the context of targeting persons in the United States for surveillance, where the Fourth Amendment itself often requires probable cause and where the civil liberties of Americans are most implicated. But it makes no sense to require a showing of probable cause for surveillance of overseas foreign targets who are not entitled to thee Fourth Amendment protections guaranteed by our Constitution. Put simply, imposing this requirement in the context of surveillance of foreign targets located overseas results in the loss of potentially vital intelligence by, for example, delaying intelligence collection and thereby losing some intelligence forever.

There’s much more. Here is the letter in its entirety:

It should be noted that the McConnell/Mukasey letter also blows away the claims that liberals made a couple of years ago that FISA in its original form was perfectly adequate, and didn’t require supplementation by executive order.
McConnell and Mukasey probably won’t convince the woefully underqualified and doggedly partisan Reyes, but perhaps the facts they disclose will help to build public pressure on the Democrats to stop sacrificing our security against terrorist attack to the interests of their patrons in the plaintiffs’ bar.
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