Andy McCarthy on FISA: we are genuinely less safe

On the National Review Online, former federal prosecutor Andrew C. McCarthy (he prosecuted those who bombed the World Trade Center 15 years ago today) describes the damage done when the Democrat Party leadership in the House let the Protect America Act lapse a week ago Saturday:

The Democratic leadership on Capitol Hill has circled the wagons in defense of the party’s determination to roll the dice with American national security.

Senators Jay Rockefeller and Patrick Leahy joined Representatives Silvestre Reyes and John Conyers in penning a fatuous op-ed in the Washington Post Monday. The four are chairs of the intelligence and judiciary committees of, respectively, the Senate and House. They claim that the White House is engaged in fear-mongering when it decries the failure of House Democrats to enact a reform measure that would have preserved essential intelligence-collection authority — a bill that passed in the Democrat-controlled Senate by an overwhelming two-to-one margin and would similarly sail through the House if Speaker Nancy Pelosi would allow it to come to the floor.

Well, it may be perfectly fine with them, but it will not be perfectly fine with most Americans. The FISA court may not authorize surveillance unless the government shows probable cause — a courtroom proof standard — that its target is a foreign agent. Indeed, the government must not only prove probable cause; it must also demonstrate that high-level executive branch officials have been consulted and have assented to the need for eavesdropping, and that there are not less intrusive alternatives for obtaining the desired information (we would not, after all, want to tread unnecessarily on the privacy rights of, say, an Egyptian jihadist in Baghdad).

Not to worry, the top Democrat lawmakers tell us. The FISA court “has approved nearly 23,000 warrant applications and rejected only five” since its creation in 1978. If that isn’t sleight of hand, I don’t know what is.

First, as noted above, the FISA court only gets applications when we already have “probable cause.” Until 2007, however, when the selfsame FISA court suddenly rewrote 30 years of law and practice, probable-cause was never our standard for collecting intelligence overseas. That’s because having “probable cause” means you already know someone is a danger. What we try to do overseas — or, at least, what we used to try to do overseas before the FISA court assumed the law-writing and intelligence-management jobs of the other branches — is figure out who may be a danger. Especially when our current intelligence gap involves previously unknown terrorist groups, it is absurd to hamstring surveillance coverage with a probable-cause burden — if we had probable cause, the threat wouldn’t be unknown.


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