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National Security Experts Call Out Bush FISA Falsehoods

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We’ve picked apart dozens of the Bush Administration’s fear-mongering inaccuracies and highlighted any number of scare tactics on FISA.  What they want is more executive power at the expense of civil liberties and the rule of law.  None of it has a thing to do with actual national security concerns.  None.

It is well past time that the national media start asking what, exactly, the Bush Administration is trying so hard to keep under wraps. Do the telecoms fear being penalized for end-running a written law which contained express penalties for violations thereof? Or is it Bush, Cheney, Addington and pals who fear accountability for petulantly demanding an imperial fiat for obeisance without regard to Congress or the Courts?

Of course, that would require that the national media knew their hind end from a hole in the ground on this issue — Glenn thinks not.  And C&L agrees.  Seems to me if the Bush Administration is publicly lying about a law, that it might be important to understand the law about which they were lying by, um, reading it and asking knowledgeable experts your questions.  Apparently, looking like a doofus is the more popular answer.  Jeebus.

Why so much effort to hide this? I’ll let several former national security professionals tell you, just like they told Director of National Intelligence Mike McConnell in a letter yesterday:

…The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law. As you have stated, "Unlike last summer, there is no backlog of cases to slow down getting surveillance approvals from the FISA court. We’re caught up to all of it now." As court orders are received, telecom companies are required to comply. Also, existing NSA authority allows surveillance to be conducted abroad on any known or suspected terrorist without a warrant. It is unclear to us that the immunity debate will affect our surveillance capabilities.

You stated on Fox News Sunday February 17 "the entire issue here is liability protection for the carriers" and that with the expiration of the Protect America Act, the telecom companies "are less inclined to help us." As mentioned above, the authorizations of surveillance under the sunset PAA still run for a year and they provide clear legal protection to any cooperating communications carrier. For new targets that are somehow not covered by the existing authorizations, the FISA court can issue an order, which the telecom companies are legally obliged to follow. Telecommunications companies will continue to cooperate with lawful government requests, particularly since FISA orders legally compel cooperation with the government. Again, it is unclear to us that the immunity debate will affect our surveillance capabilities.

The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively. Despite this fact, the President claimed on February 16 that as a result of PAA not being extended by Congress "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad." It remains unclear-in light of the law-how the President believes surveillance capabilities have changed….

I think that sums it up pretty nicely, don’t you? It’s signed by Rand Beers, Richard Clarke, Don Kerrick, and Suzanne Spaulding. 

UPDATE:  bmaz asks if Congress has seen all of the indemnification agreements the Bush Administration provided for the telecoms — from before 9/11 until this illegal program was exposed.  I’d like to know the answer to that as well.  Anyone?

(Sen. Russ Feingold explains FISA via Matt Stoller at OpenLeft.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com