True North

Silvestre Reyes' dishonesty is showing. Here's where Rep. Reyes goes wrong in his March 20th Strib op-ed:

As the chairman of the House Intelligence Committee, I am committed to taking this fight to the terrorists, but I remain convinced that we can do that while stopping this administration, or any administration, from conducting warrantless spying on Americans. Our responsibility includes not only the safety of the American people but also the safety and sanctity of the American Constitution. We must protect both.

Rep. Reyes is spinning this beyond acceptable levels. He's writing about Rep. Michele Bachmann's op-ed about the expiration of the FISA reform bill known as the Protect America Act (PAA). In the law that expired, FISA was updated temporarily. It expired after 6 months.

Everyone who knows anything about intelligence gathering knows that FISA deals only with foreign surveillance, hence the name Foreign Intelligence Surveillance Act. It has nothing to do with surveilling Americans.

Let's first examine why the PAA was enacted. A FISA Appellate Court judge ruled that foreign communications that passed through an American telecommunications switch needed a warrant because it was deemed a domestic communication. In this judge's mind, it didn't matter that the sender and recipient weren't Americans. It didn't even matter that neither the sender or recipient weren't even in the United States. All that mattered was that the communication passed through an American switch.

DNI Chairman Mike McConnell testified to this in Congress. He repeated that information to FNS's Chris Wallace:

Director of National Intelligence Mike McConnell recently told Fox News Channel's Chris Wallace that by summer 2007, "We were in extremis, because we had lost...about two-thirds of our [surveillance] capability."

Director McConnell testified that he was writing out warrants for known terrorists because of the FISA ruling.

In other words, Rep. Reyes is spinning this when he says that he's "convinced that we can do that while stopping this administration" from "conducting warrantless spying on Americans." Rep. Reyes should be ashamed of himself for implying that this has anything directly to do with domestic intelligence gathering. the only way it would affect domestic intelligence gathering is if the NSA or CIA spots the name of an American citizen or "person". If they spot someone living in the United States, then they get a warrant from a court to surveil them.

The only issue left to resolve on the legislation is whether they'll grant retroactive immunity to the telecommunications companies that assisted in this effort. Here's how Rep. Reyes opens his op-ed:

A March 14 article by Rep. Michele Bachmann, R-Minn., made several errors in decrying House inaction on electronic surveillance legislation.

First, on the very day her note was published, the House passed legislation that would grant new authority for electronic surveillance. This bill, which represents a collaborative effort between the House and Senate, would give intelligence agencies stronger tools to track terrorist communications while preserving important constitutional rights for Americans.

That isn't totally accurate. The bill didn't represent a "which represents a collaborative effort between the House and Senate" because the House bill didn't include retroactive immunity to the telecommunication companies.

Two other things that Rep. Reyes isn't mentioning is that the Senate bill passed by a 68-29 margin, a truly bipartisan effort, and that the Senate bill wouldn't be considered because it would pass with similar bipartisan support.

Rep. Reyes is simply doing Speaker Pelosi's bidding and doing a lousy job of it at that. Here's what Sen. Kit Bond, Rep. Peter Hoekstra and Rep. Lamar Smith said in their Washington Post op-ed about the lapsing of the PAA:

We are less safe today and will remain so until Congress clears up the legal uncertainty for companies that assist in collecting intelligence for the government, and until it gives explicit permission to our intelligence agencies to intercept, without a warrant, foreign communications that pass through the U.S. Here's why:

- Intercepting terrorist communications requires the cooperation of our telecommunications companies. They're already being sued for having cooperated with the government after 9/11. So without explicit protection for future actions (and civil liability protection for the help they provided in the past), those companies critical to collecting actionable intelligence could be sidelined in the fight.

It has already happened, briefly. "[W]e have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act," Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey wrote in a letter dated Feb. 22 to Mr. Reyes, the chairman of the House Intelligence Committee.

- The old FISA law does not adequately protect the U.S., which is why it was revised by the Protect America Act last summer. The problem is that, although it has a few work-around-provisions, such as allowing intelligence agencies to conduct surveillance for up to 72 hours without a warrant, FISA ultimately requires those agencies to jump through too many legal hurdles. Those include the Fourth Amendment's "probable cause" requirements, protections never intended for suspected terrorists' communications that are routed through the U.S.

Let's remember Rep. Reyes' accusation against Michele Bachmann:

Second, the expiration of the so-called "Protect America Act" (PAA) has not degraded our nation's intelligence collection capability. Bachmann chose to quote the director of national intelligence in his Feb. 5 testimony to support her argument, but on Feb. 23 the administration had to issue a retraction of those statements, stating that the government is now getting full cooperation from telecommunications companies and that the authorities of the PAA remain in full effect.

I find it troubling that the congresswoman chose to use a subsequently retracted statement in lobbying on a matter of such importance.

Based on the Washington Post op-ed and Director McConnell's testimony, Rep. Reyes is just plain wrong. The expiration of the PAA has degraded the nation's intelligence gathering capabilities. Reyes can cite the administration's retraction all he wants but the facts are that McConnell's team was writing out warrant applications for known terrorists.

It's time that the House stopped their charade. It's time that they stopped spinning their irresponsible behavior. It's time that they passed the Senate bill so that we're fighting the terrorist with everything we've got in our arsenal rather than fighting them with one arm tied behind our back.

Comments welcome at LFR.