Can it be that the evildoers are closer to harming the United States because House Democrats won’t roll over for President Bush and pass a bill that awards legal immunity to telecom firms that participated in what might have been illegal surveillance requested by the Bush administration? That’s what George W. Bush and his aides have claimed. But four former top national security officials yesterday sent a letter to Director of National Intelligence Mike McConnell that challenges that melodramatic–and fearmongering–interpretation. The letter–written by Rand Beers, former senior director for counterterrorism at the National Security Council; Richard Clarke, former head of counterterrorism at the NSC; retired Lt. General Don Kerrick, former deputy national security adviser; and Suzanne Spaulding, former assistant general counsel at the CIA–is a good retort to the Bush White House. Here are the key parts:
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 [Foreign Intelligence Surveillance Act] 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.
Both the House and Senate have legislatively revisited FISA whenever requested by the Executive Branch and have diligently engaged in oversight of the process. In fact, FISA has been modernized nearly a dozen times since 9/11. The Administration has made it clear it believes this entire debate hinges on liability protection. As previously stated, it is unclear that liability protection would significantly improve our surveillance capabilities. It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.
Then as now, what remains paramount is that differences in any legislation be amicably and methodically reconciled in order to ensure our intelligence community has the tools it needs to monitor those who seek to harm us without upending civil liberties. It is the duty of the Executive Branch to inform this process. America’s security cannot be captive to partisan bickering and distortions.
These former intelligence professionals are saying the current debate over immunity won’t undermine the fight against anti-American terrorists. Should the citizenry believe them or Bush and Cheney?