The Trample on the Constitution Act

Director of National Intelligence Mike McConnell, reaching out to the 8-year-olds in the New York Times's readership, urges us to "Help me spy on Al Qaeda":

The Protect America Act, enacted in August, has lived up to its name and objective: making the country safer while protecting the civil liberties of Americans. Under this new law, we now have the speed and agility necessary to detect terrorist and other evolving national security threats. Information obtained under this law has helped us develop a greater understanding of international Qaeda networks, and the law has allowed us to obtain significant insight into terrorist planning.

Congress needs to act again. The Protect America Act expires in less than two months, on Feb. 1. We must be able to continue effectively obtaining the information gained through this law if we are to stay ahead of terrorists who are determined to attack the United States.

Before the Protect America Act was enacted, to monitor the communications of foreign intelligence targets outside the United States, in some cases we had to operate under the Foreign Intelligence Surveillance Act, known as FISA, a law that had not kept pace with changes in technology. In a significant number of these cases, FISA required us to obtain a court order. This requirement slowed — and sometimes prevented — our ability to collect timely foreign intelligence.

Our experts were diverted from tracking foreign threats to writing lengthy justifications to collect information from a person in a foreign country, simply to satisfy an outdated statute that did not reflect the ways our adversaries communicate. The judicial process intended to protect the privacy and civil liberties of Americans was applied instead to foreign intelligence targets in foreign countries. This made little sense, and the Protect America Act eliminated this problem.

Any new law should begin by being true to the principles that make the Protect America Act successful. First, the intelligence community needs a law that does not require a court order for surveillance directed at a foreign intelligence target reasonably believed to be outside the United States, regardless of where the communications are found. The intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats.

Second, the intelligence community needs an efficient means to obtain a FISA court order to conduct surveillance in the United States for foreign intelligence purposes.

Finally, it is critical for the intelligence community to have liability protection for private parties that are sued only because they are believed to have assisted us after Sept. 11, 2001. Although the Protect America Act provided such necessary protection for those complying with requests made after its enactment, it did not include protection for those that reportedly complied earlier.

The intelligence community cannot go it alone. Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits. I share the view of the Senate Intelligence Committee, which, after a year of study, concluded that “without retroactive immunity, the private sector might be unwilling to cooperate with lawful government requests in the future,” and warned that “the possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation.”

Time for the Protect America Act is growing short, but there is still an opportunity to enact permanent legislation that helps us to better confront both changing technology and the enemies we face in a way that protects civil liberties.

That's the part that gets to me the most: "in a way that protects civil liberties."

He has just finished advocating for the removal of every provision or requirement that does protect civil liberties -- and then he tells us he wants the civil liberties protections removed in such a way that protects them? What kind of game is this? The entire point of the "Protect America Act" is that it places no limits on the government's ability to spy on Americans -- that's what the retroactive immunity for telecoms is about; that's what the lack of any requirement for a court order or for establishment of probable cause is about. Those ARE the protections for our civil liberties!

Chris Dodd has a superb response at The Huffington Post:

In what has become a sad pattern, Mr. McConnell, like many in this Administration past and present, tries to convince the public that we must abandon the rule of law to protect the telecom industry from being held accountable if they broke any laws. He writes, "[I]t is critical for the intelligence community to have liability protection for private parties that are sued only because they are believed to have assisted us after Sept. 11, 2001."

Mr. McConnell is flat wrong.

To suggest that the telecoms are being sued "only" because they assisted the government after September 11th is disingenuous at best. Companies like AT&T and Verizon find themselves in court today not because they assisted the government by handing over their customers' personal and private information - but because they appear to have broken the law by doing so. The telecoms are being sued because they did not receive a warrant - yet they went ahead and helped the Administration anyway.

This belief that the Administration and anyone who helps them is above the law is on display throughout his NYT piece. Mr. McConnell writes, "Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits," suggesting these companies acted out of love of country. They may well have - but we can no more project a motive of patriotism onto the telecoms' illegal actions than greed or fear.

Why not? Because the Administration has forbidden the American people from learning exactly what happened when this information was handed over without warrant. That is in part why the continuation of these cases is so important. By granting telecoms retroactive immunity, as Mr. McConnell advocates, and allowing for warrantless surveillance, we would essentially be saying that when it comes to intelligence gathering, there is no need for anyone in any circumstance to follow any law or even the Constitution so long as it is broadly defined as a matter of "national security."

That's ridiculous - and if anything, it puts our national security further at risk.
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I believe we can't protect our country if we fail to protect our Constitution and the rule of law. It is precisely by upholding our rights that we become safer and more secure at home. The opposite path is fundamentally flawed, inherently dangerous, and, apparently, embraced by our Director of National Intelligence. Given all that this Administration has done to trample our Constitution, it may not be surprising - but it remains disappointing.

Emptypockets at The Next Hurrah, by contrast, is inclined to take McConnell at his word:

He writes that FISA has "not kept pace with changes in technology" (FISA was created in response to the illegal government activities of the Nixon administration) and that, under FISA, "our experts were diverted from tracking foreign intelligence threats to writing lengthy justifications to collect information from a person in a foreign country". Bottom line? "The intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists".

Which raises the question -- if they know who the terrorists are, why not go get them? Why is McConnell spending his time fighting political battles in Washington, DC, which even if won, will only let him listen in on phone calls? Why does he want to divert our experts to listening to tapes when they could be out catching bad guys?

I can imagine one reason: monitoring known terrorists may lead to the capture of larger groups of terrorists. But, to me, that stands too great a risk of losing track of them, as occurred with bin Laden. Shouldn't McConnell and the US government capture these terrorists while they can? Why are they playing soft with them?

The other possibility, of course, is that McConnell doesn't actually know yet who the terrorists are, and wants to be able to eavesdrop on lots of private conversations of innocent civilians, with the hopes that that will turn up a handful of terrorists. But that's not what he's saying, and I'm prepared to take him at his word: he knows where they are, he knows who they are. He'd just rather listen in than stop them.