Director of National Intelligence Mike McConnell and Attorney General Michael B. Mukasey said in a letter sent yesterday afternoon to Capitol Hill that the companies were refusing to cooperate because they were uncertain about what legal liability they might face.
“We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act,” McConnell and Mukasey wrote to Rep. Silvestre Reyes (D-Tex.), chairman of the House intelligence committee. “Because of this uncertainty, some partners have reduced cooperation.”
The two officials noted that some companies have “delayed or refused compliance” with requests to add surveillance targets to general orders that were approved before the law expired. They did not provide further details.
Congressional Democrats, notably Reps. Silvestre Reyes and John Conyers and Senators John Rockefeller and Pat Leahy, are accusing Republicans (as the article puts it) of “politicizing the debate”. Except that DNI McConnell isn’t a partisan figure. He was Bill Clinton’s head of the NSA for four years and a 30 year veteran of the intelligence business. Before the Democrats talk about playing politics, they should take a good long look at the $1.5 million that lawyers representing clients who are currently suing telecom companies over FISA-related matters and wonder if that doesn’t make them look like a bunch of selfish weasles who care a lot more for their own political careers and less for the lives of their fellow Americans.
The story notes that the balking telecom companies eventually granted our requests, but that doesn’t fix the overall problem. Right now, those companies are rightly scared of the lawsuits hanging over their heads. Those could come down on them at an time until the bill is passed that correctly gives them the immunity from such dangerous use of our law against us.
The companies are scared of breaking the law? I’d have thought that a good thing. Guess that’s why I’m a democrat, though.
There have already been cases where the telecoms refused to participate in the spying on us because they hadn’t been paid. But nobody raised any complaints then. The dems didn’t because they want the spying to stop. The reps didn’t because it was their president who may have compromised security by being late on compensation. If this is such a serious issue, why was nobody concerned then?
Because it’s not really a serious issue. Rather than whining, maybe the administration could get warrants through the still existing FISA court for their operations. And it’s not like they have to do it today. They can start operations and apply for a warrant three days after the fact. And they can use already gathered information to bolster their case for the warrant. The legal bar for surveillance is already set more for limbo than high jumping. And it’s not like the FISA court has been overly restrictive. They have approved more than 99% of the warrant applications before them. So what does the administration want to do that can’t even pass this feeble test? I suspect it wouldn’t stand the light of day. Which is why the administration wants to make sure that everyone has immunity. The fact is that when laws are broken, someone should be made liable. I’m perfectly willing to grant immunity to the telecoms, but the liability should fall on Bush for extorting the telecoms into illegal behavior.
Tom – That’s not what’s happening, though. The reason for the temporary law is that the FISA court decided that even communications that passed through the United States was subject to its jurisdiction. That holds true even if both subjects of the surveillance are outside of the US and not US citizens. That’s never been a correct interpretation of the law and it needed to be addressed.
Also, as DNI McConnell rightly said, moving on surveillance targets requires more speed than the FISA courts can allow. Placing more subjects under their jurisdiction compromises our security.
The telecom companies’ dilemma is that they weren’t actually breaking the law at the time. they were acting in good faith on long-standing precedent. The FISA court decision changed that. These companies shuold not be held liable for doing what any reasonable company would have done under the circumstances.
And the Democrats should be held accountable for their apparent financial interest in holding up the law.
“And the Democrats should be held accountable for their apparent financial interest in holding up the law”
Huh? Okay, I’ll bite, what’s the dems financial interest? The reps obviously have an interest in providing immunity for their donors. I’m guessing the dems interest is in reducing the donations to the reps from telecoms?
“moving on surveillance targets requires more speed than the FISA courts can allow”
Really? The FISA court is currently not very busy, because it’s been bypassed. I’m confident they can approve a warrant in three days given they don’t really have any cases pending. And guess what? The FISA system can be easily gamed anyway. The administration can spy for three days, have their warrant turned down, and start up a new operation that can last for three days before being turned down again. This process can go on indefinitely because there are no negative repercussions from a warrant denied. So the administration can already set up a permanent operation that only requires them to send an intern with a warrant to the FISA court every 3 days. What’s that cost? Two hundred dollars a day, maybe?
But if anyone is to be held accountable, it’s the Bush administration which, rather than get a warrant is, by it’s own admission, jeopardizing the security of our country in an effort to make a political point. The fact that the administration isn’t willing to get some paralegal to type up a warrant application says quite a lot about how seriously they think this issue really is. It’s apparently not worth the $200 it would cost to type the application and deliver it.
Of course, you could make the case that the administration’s spying program is so illegal that there would be no chance of getting a warrant. In such a case, wasting a paralegal’s time might seem, well, wasteful. But they could still file warrant applications every three days. Compared to the $500 million we spend every day in Iraq, $200 a day on FISA warrants seems pretty damn reasonable. Yet they won’t spend it. Why?
It’s even more amazing when you consider the fact that, if the administration’s argument is correct, they could use a denied warrant in their political favor. How much confidence does the administration have in it’s argument? Apparently, not much.