The House Strikes Back

Bush came out again this morning with his rhetoric blazing: "[B]y blocking this piece of legislation our country is more in danger of an attack. By not giving the professionals the tools they need, it's going to be a lot harder to do the job we need to be able to defend America," he said.

"[T]he House leaders must understand that the decision they made to block good legislation has made it harder for us to protect you."

And intelligence director Mike McConnell writes in a Washington Post op-ed: "Some have claimed that expiration of the Protect America Act would not significantly affect our operations. Such claims are not supported by the facts. We are already losing capability due to the failure to address liability protection. . . . Without long-term legislation that includes liability protection, we will be delayed in gathering -- or may simply miss -- intelligence needed to protect the nation."

The Effects

Neither side is being entirely candid about the effects of letting the law lapse. Bush has provided absolutely no evidence to back up his claim that it would significantly increase the danger of terrorism. But it could have an impact in some very specific -- if at this point hypothetical -- circumstances.

Hulse writes in the Times: "Surveillance efforts will not cease when the law lapses. Administration intelligence officials said agencies would be able to continue eavesdropping on targets that have already been approved for a year after the initial authorization. But they said any new targets would have to go through the more burdensome standards in place before last August, which would require that they establish probable cause that an international target is connected to a terrorist group."

Pamela Hess writes for the Associated Press that McConnell's position is that "[i]t is difficult for intelligence agents piecing together shreds of information to get enough to merit probable cause. . . . By the time they can amass enough information to do that, the phone number they wanted to track might already be obsolete, McConnell said."

So, in the case that the NSA finds "shreds of information" indicating that previously unknown targets are using communications that that pass through the U.S. on wires belonging to a provider with which the government doesn't already have an agreement -- and if those subjects aren't actually behaving suspiciously enough to constitute probable cause -- then there might be a holdup.

Ben Powell's World

In a conference call with reporters yesterday, Ben Powell, general counsel for the Office of the Director of National Intelligence, made all sorts of dramatic assertions about the Protect America Act -- none of which he was able to actually back up with concrete examples.

"Since the enactment of the Protect America Act, we've obtained critical information," he said, according to a Federal News Service transcript (subscription required). "Some examples of that information include insight and understanding leading to disruption of planned terrorist attacks, efforts by terrorists to obtain guns and ammunition, efforts of an individual to become a suicide operative, terrorist facilitator plans to travel to Europe, information on terrorist money transfers, identifying information regarding foreign terrorist operatives, and plans for future terrorist attacks."

Holy moly! Is that for real? Powell even insisted that "in some of the examples I just provided to you, we would not have been able to obtain FISA court orders because FISA sets a probable cause standard."

Powell also addressed the issue of how retroactive liability protection for the telecoms would affect their behavior going forward.

This puzzles me. While retroactive liability for what may well have been illegal acts would certainly be a boon to the telecoms -- and would help keep the public in the dark about what the government asked them to do, as well -- on what grounds could it affect their cooperation going forward? The whole point of surveillance law -- the old one or the new one -- is to clearly define what the government can and can't demand from the telecoms. And when the government presents a telecom with a warrant or a lawful order, there shouldn't be any problem at all in having it enforced, should there?