Pelosi’s FISA negligence endangers our troops

Army Specialist Alex Jimenez


The liberal politicians and media are lying to the American people (again). They allege that when House Speaker Nancy Pelosi let the Protect America Act expire two weeks ago no harm was done. The expired Act only allows our intelligence agencies to continue to intercept the foreign communications of previously identified threats, the known terrorists and their communication devices. Senator Mitch McConnell shows the effect this has on our troops in combat:

If a Marine in Iraq captures a terrorist from a previously unidentified terror group, our agents will not be free to call the phone numbers in this terrorist’s laptop right away. If a call is placed to one of the numbers in this terrorist’s laptop and routed through U.S. phone lines, our agents will have to apply for a warrant, even though the people on the other end of the phone are half a world away, the terrorist with the laptop is not an American, and all this takes place in a theater of war.

Last year, before Congress enacted the Protect America Act (for a mere six months), three of our soldiers in that same theatre of war were kidnapped by al Qaeda and the existing FISA law forced a delay in monitoring the enemy’s communications:

No case on the public record better illustrates the heightened dangers Americans will face than the case of three soldiers from the Army’s 10th Mountain Division who were ambushed May 12 south of Baghdad, apparently by al Qaeda. One soldier was found dead on May 23, while the other two remain missing. As coalition forces searched for the missing soldiers on May 13 and May 14, intelligence officials learned about insurgent communications they believed to be related to the ambush. On May 14, a special court overseeing FISA issued an order permitting some suspected terrorist communications to be monitored. The following day, lawyers and intelligence officials spent more than nine hours discussing the need for a FISA order to monitor these communications before Attorney General Alberto Gonzales authorized monitoring. Critics attribute the delays in the search to bureaucratic “bungling” — an intellectually dishonest argument, because it overlooks the fact that the FISA court had issued several rulings earlier this year that called into question the government’s authority to act without prior court approval.

What the Washington Times meant when it wrote, “lawyers and intelligence officials spent more than nine hours discussing the need for a FISA order,” is FISA requires a showing of probable cause, in writing, by the Attorney General before even an emergency order can be issued. Pardon me but that is a hell of way to fight a war.

Our troops in combat need intelligence information — in real time or as fast as they can get it — in order to fight, win, and survive.

Yet Congresswoman Nancy Pelosi can glibly fly off to her daughter’s wedding leaving government lawyers scrambling to put together probable cause warrant requests — while new intelligence goes uncollected — to present to unelected FISA court judges for them to decide what information about the enemy can be collected, if at all.

Whenever I hear some protect-America-last liberal in Congress say they, “Support our troops,” I feel the urge to spit.

Too harsh, you say. Tell that to the family of Army Specialist Alex Jimenez.

And remember that FBI agents scrambled for weeks, from mid-August to 9/11, while government lawyers debated whether they had reached the probable cause threshold to get a warrant to search Zacarias Moussaoui’s computer and other belongings.

Like I said, that is a hell of a way to fight a war, leaving lawyers to lose it.

Updated, 10:53 PM EST: Former federal prosecutor Andy McCarthy adds:

As House Democrats argue, FISA has a 72-hour emergency provision. That is, you can start recording without a court order and get judicial authorization within three days. Now, you would have to stop recording if the judge ultimately decided probable cause was lacking. (This, again, is part of what is ridiculous about applying FISA overseas, since aliens outside the U.S. have no American law right to the protection of a probable cause standard). But you would not have to wait for judicial authorization to begin surveillance.

So, if you don’t have to wait for judicial authorization, why is McConnell right to say our agents couldn’t begin surveillance “right away”? Well, it’s important to note that the 72-hour delay only excuses the otherwise necessary prior judicial authorization; it does not excuse the requirement of prior Attorney General approval.

Under FISA, emergency monitoring may begin only after the Attorney General himself determines that (a) “an emergency situation exists” requiring the commencement of surveillance “before an order authorizing such surveillance can with due diligence be obtained,” and (b) all the factual requirements for a judicial FISA order exist (i.e., there is probable cause that the target is an agent of a foreign power, there are no alternative investigative means by which the same information can be obtained, and all the necessary officials have given the required certifications). That can take a lot of time — the Attorney General of the United States is not out on the battlefield in Iraq, and a lot of other people in the varying chains of command have to sign off before between the time a Marine in the field realizes there’s an emergency and the presentation of the emergency to the AG. [Editor — All bolded emphasis added mine.]


Editor — Hat tip to Cliff May.

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.