Let the Warrantless Wiretapping Resume

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It’s official: The Protect America Act is on it’s way to the president’s desk and, once it arrives, you can be sure it will be signed promptly so the administration can resume its warrantless eavesdropping program (legally this time). Last night 41 House Democrats sided with their Republican colleagues to pass the measure, greenlighted by the Senate on Friday, which revises the Foreign Intelligence Surveillance Act (FISA), allowing the NSA to intercept foreign communications without obtaining a court order. Troubling to civil libertarians and the House Democrats who voted against the legislation is the wording in the bill, which seems just vague enough that U.S. citizens and domestic communications could still be swept up in the surveillance net, which was the whole problem with the first incarnation of the administration’s warrantless wiretapping program. According to the bill, electronic intercepts involving people “reasonably believed to be outside the United States” are fair game. The question is what constitutes “reasonable belief” and can the intel community be counted on to adhere to this standard, particularly after the FBI’s well publicized abuses of its FISA authority.

Another question that’s worth asking is why the Democratic leadership—Nancy Pelosi and Harry Reid in particular—allowed their caucus to be rushed into action on this bill, bowing to pressure from the White House and congressional Republicans, who have been agitating for a FISA fix.

As recently as three weeks ago, it was my understanding that the Democrats were going to take up FISA in the fall, after Congress returned from the August recess. Silvestre Reyes, chairman of the House Intelligence Committee, said as much during a hearing I attended in late July that explored the implications of the recent National Intelligence Estimate on Al Qaeda. After the committee’s ranking member Pete Hoekstra spent the better part of his opening statement lambasting the Democrats for their inaction on FISA (“we have over a week before Congress goes on recess; Al Qaeda is not going to take a break”), Reyes had this to say:

We have learned many things post-9/11, one of which has been that as we give our military and law enforcement agencies every conceivable tool that we can in order to protect us, we also have to be mindful that we want to—we don’t want to have the terrorists succeed by compromising the rights of our—of our American citizens. I think that’s a basic and fundamental responsibility of the Congress. I say that because when we provided the legislation, the Patriot Act, we provided some key tools that now we have found have been used inappropriately. One example was the national security letters that were utilized by the FBI.

I think it’s important that we do our business in a very careful and orchestrated, regular way, and I think it’s vitally important that all of us understand that in terms of addressing whatever changes need to be made under the Foreign Intelligence Surveillance Act, as my ranking member mentioned, we want to do that. We want to give and make the adjustments that are necessary, but we also want to be careful doing that. So over the course of the last month, month and a half, we’ve been having hearings to address that very issue. We’ve been trying to understand exactly what issues and what problems those that have had to work with FISA have had to address as they went about their business.

At some point in the fall, we will look at whatever legislative fixes need to be made. A lot I think depends on information that you give us about the threat. And certainly the NIE is one issue that we want to be very careful in evaluating. But I also think that we don’t want to be stampeded to make changes that ultimately may—we may have to change because we didn’t do it carefully and in a regular way.

Sounds reasonable enough. In the end, however, careful consideration went out the window and Reyes and his Democratic colleagues were indeed stampeded into action on a bill that Nancy Pelosi said yesterday “does violence to the Constitution.” (For the record, Reyes and Pelosi were among the 183 members of Congress who voted against the FISA legislation.) The Democrats’ haste on FISA seems to have more to do with politics than with crafting sound policy. The New York Times notes today that if the bill had stalled, “that would have left Democratic lawmakers, long anxious about appearing weak on national security issues, facing an August spent fending off charges from Republicans that they had left Americans exposed to threats.” The Washington Post reports “that Democrats facing reelection next year in conservative districts helped propel the bill to a quick approval. Adding to the pressures they felt were recent intelligence reports about threatening new al-Qaeda activity in Pakistan and the disclosure by House Minority Leader John A. Boehner (R-Ohio) of a secret court ruling earlier this year that complicated the wiretapping of purely foreign communications that happen to pass through a communications node on U.S. soil.”

Now, the Democrats can rest easily over the August recess, knowing that they haven’t left themselves vulnerable to political attacks. The rest of us can worry about whether the NSA is using its enhanced surveillance authority to spy on Americans.


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