Listening Under FISA, Part II: The Politics

Director of National Intelligence Mike McConnell’s request for Congress to pass legislation for surveillance of targets taking into account improved cable and fiber optic technology was, at first, non-controversial. The administration sent a bill to Capitol Hill in April and the Chairman of the Senate Intelligence Committee pledged to move forward. In exchange for support, however, Senate Democratic leadership wanted the release of long-sought documents about previous wiretapping policy.

Director of National Intelligence Mike McConnell’s request for Congress to pass legislation for surveillance of targets taking into account improved cable and fiber optic technology was, at first, non-controversial. The administration sent a bill to Capitol Hill in April and the Chairman of the Senate Intelligence Committee pledged to move forward. In exchange for support, however, Senate Democratic leadership wanted the release of long-sought documents about previous wiretapping policy. The administration had previously declined to provide the documents, but by attaching the request to the administration’s request, Democrats apparently thought they trade. The administration declined again and the process stalled.

In late July, when McConnell met with leaders of both parties and asked urgently for approval of a redrafted bill, he brought evidence of terrorist activity that spurred the Hill to action. But as they were working on the legislation, there arose three Democratic hiccups: the difference between surveillance “directed at” and surveillance “concerning” targets; dealing with targets outside the U.S. talking to people in the U.S.; and a provision, according to The Washington Post, that warrantless wiretapping only be used against foreign suspects “tied to terrorist groups.”

The first had to do with mistrust of the administration; Democrats said the broader word gave National Security Agency (NSA) too much leeway. The second was an administrative nightmare, requiring termination of surveillance if a suspect abroad talked to someone in the United States – a terrorist could quickly follow a call to the U.S. with the call he REALLY wanted to make, hoping we weren’t back on the line. Or a foreign terrorist could give a person in the U.S. information to pass on to others. The third is silly on its face – the universe of suspect people not “tied” (whatever that means) to known terrorist groups (new ones are constantly emerging from splinters of old ones) must be substantially larger than the universe of card-carrying terrorists.

All were rejected and the Senate bill passed 60-28 (including 14 Democrats). In the House, 41 Democrats joined the Republicans. But this is not over.

The measure is temporary – six months, that’s all. Only hours after passage, House Speaker Nancy Pelosi denounced parts of the bill, saying she wouldn’t wait six months and plans to bring up new legislation “as soon as possible,” presumably in September.

This reeks of the same strange logic as sending Gen. Petraeus to Iraq with six months to implement new policies, but not waiting half that long to demand changes. At some point, the Democrats should act on the understanding that if NSA fails to protect us, or Gen. Petraeus fails to stabilize Iraq, our country – not only the President or his administration – will pay the price.

The surveillance legislation is a window to people who think the White House is the enemy and appear not to believe terrorists see no distinction between the White House, the Democratic leadership and the rest of us.