Thursday, February 28, 2008

If Breaking the Law Is Illegal, Won't Telecom Companies Be Scared to Break the Law? 

Courtesy of our captivating colleague Avedon Carol: Richard Clarke, Rand Beers and other prominent counterterrorism experts have just written a letter to Director of National Intelligence Mike McConnell, telling Mike McConnell what we would have told Mike McConnell if Mike McConnell had asked us:
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.
Messrs. Clarke, Beers et al, influenced, perhaps, by the television quiz show Jeopardy!, seem to have phrased their complaint in the form of a question. We are less diplomatic, and would therefore have explained the problem to Mike McConnell simply and unambiguously, in the declarative, thus: the President does not for a moment believe that surveillance capabilities have changed. The President is demanding telecom immunity to prevent his own felonies from coming to light.

Clear enough for you?

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