Democrats continue to spout nonsense on Intelligence Reform

The National Review has an article that points out the nonsense Democrats have been saying in defense of their blocking of the terrorist wiretapping legislation, a bipartisan national security bill.

By: Andrew McCarthy

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.

The op-ed marks a dramatic shift for Rockefeller. The West Virginia Democrat championed the Senate bill, which was voted out of his committee by a 13-2 landslide. As recently as February 14, he was quite candid in acknowledging that the consequence of allowing the Protect America Act (PAA) to lapse, as it did a little over a week ago when House Democrats refused to act, would be “degraded” intelligence-collection capacity.

Now, however, with his fellow Democrats getting hammered as unserious about protecting American lives, it’s evidently time to close ranks. Rockefeller has suddenly joined the “Everything Is Beautiful” chorus that claims the sun’s setting on the PAA is really no big deal since any security gaps can still be filled by FISA — the ill-conceived, obsolete Foreign Intelligence Surveillance Act of 1978.

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But not all new players. If new groups emerge, the previously issued PAA directives will not permit surveillance of them and their operatives.

And new groups are emerging all the time — highly capable new groups. Recent intelligence estimates indicate that just in the Afghanistan/Pakistan border region, nearly a quarter million men have received some measure of paramilitary training in jihadist camps. Does anyone really think we have a handle on more than a bare fraction of these potential threats?

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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.

Second, it should come as no surprise that there is a very high rate of approved FISA applications. Intelligence-gathering is an executive function, not a judicial function. Under the Constitution, the executive branch only needs reasonable suspicion to conduct national security surveillance inside the U.S., and does not need any justification for conducting such surveillance outside the United States. Thus, there should never be a time when the FISA court denies an application if the executive branch appears to have probable cause.

Third, while the FISA court routinely authorizes applications for surveillance, it has — particularly since 2002 — taken to “modifying” many executive branch requests. The applications and orders are classified, so we do not know what limitations on surveillance these modifications may entail.

Fourth, it is worth mentioning 2002 because that was the year the FISA Court of Review — in its only ever known ruling — had to step in and reverse the FISA court. Why? Because that tribunal attempted by judicial fiat to rebuild the infamous “wall” which prevented intelligence agents from communicating with criminal investigators and prosecutors pursuing terrorism cases. That wall was the culprit in the last lost opportunities the FBI had to uncover the 9/11 plot.

To read the entire article click here.