White House: We Damaged National Security

The Boo! Are You Scared? Administration, trying desperately to get what they want from a Congress that has, unusually, not provided it thus far, sent their version of a horse's head in the bedsheets to House Democrats yesterday, telling them that the United States "lost intelligence" as a result of the expiration of the Protect America Act last week.

“We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act,” says an underlined passage of a six-page letter signed by Attorney General Michael B. Mukasey and Director of National Intelligence J. Michael McConnell.

The letter does not give details [...]

Current intelligence activities are not affected by the expiration for a year. But the government contends that new intelligence targets cannot be certified for surveillance, creating potential gaps in intelligence.

“Because of this uncertainty, some partners have reduced cooperation,” the administration letter says. “We are working to mitigate these problems. ... This uncertainty may well continue to cause us to miss information that we otherwise would be collecting.”

Now, first of all, that is almost certainly untrue, and we're well beyond the point where the White House should get the benefit of the doubt on these matters. In fact, we know it's not true. But for a second, let's assume that it's true. Let's assume that these "partners" have gotten all skittish that they're breaking the law by helping the government in their spying and they shut down their wiretaps (or perhaps, the government forgot to pay the phone bill, as has happened before). For one moment, let's assume that to be the case.

The Democrats in Congress voted, for the most part, to extend the Protect America Act (the sensible ones, knowing it was a brazen giveaway of civil liberties, didn't). Republicans voted against it and the Bush Administration threatened to veto it. And they blocked the extension for a very specific reason.

McConnell acknowledged last week that the White House's refusal to extend the wiretapping law was meant to pressure Congress to pass the Senate bill.

So, the United States has lost intelligence, then, as a DIRECT result of the White House playing political games with national security. They have fully admitted this. The President would rather protect the phone companies and endanger the country than protect the country and endanger a portion of the profits of the phone companies.

Glenn Greenwald has more from that letter sent by Mike McConnell and Michael Mukasey to the House.

In the letter from Chairman Reyes to which McConnell and Mukasey are responding, Reyes pointed out that under the still-existing FISA law, the Government is free to commence surveillance without a warrant where there is no time to obtain one. In response, McConnell and Mukasey wrote:

[You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have elapsed. This assertion reflects a basic misunderstanding about FISA's emergency authorization provisions. Specifically, you assert that the National Security Agency (NSA) or Federal Bureau of Investigation (FBI) "may begin surveillance immediately" in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest].

Wow, what a blockbuster revelation. Apparently, as it turns out, in the United States it's "illegal" for the Government to eavesdrop on Americans without first complying with the requirements of FISA. Who would have known? It's a good thing we don't have a Government that would ever do that, or a Congress that would ever tolerate such "illegal" behavior. And it's so moving to hear the Bush administration earnestly explain that they are so hamstrung by FISA's requirements that we are all deeply vulnerable to the Terrorists, but they have no choice but to comply with its burdensome provisions -- because to do otherwise would be "illegal." [...]

Since Mike Mukasey himself just said in this letter that spying outside of FISA is "illegal," and since it's indisputable that the Bush administration did just that for years, doesn't that compel him as Attorney General to commence a criminal investigation into this "illegal" conduct?

It's really an open and shut case, should anyone want to prosecute it. The warrantless spying program was illegal when it was enacted, as surely as it's illegal right now. Not only do House Democrats need to hold firm and let the White House scream all they want, but the next Administration needs to open a criminal investigation into every top official who authorized the clearly illegal spying program. I have no faith that this will happy, sadly.