Democrats continue to thwart terrorist surveilance

NY Times:

With Congress at an impasse over the government’s spy powers, Congressional and intelligence officials are bracing for the possibility that the government might have to revert to the old rules of terrorist surveillance, a situation that some officials predict could leave worrisome gaps in intelligence.

That prospect seemed almost inconceivable just a few months ago, when Congressional negotiators and the White House promised a quick resolution to a bruising debate over the government’s surveillance powers. But the dispute has dragged on. Though both sides say they are hopeful of reaching a deal, officials have been preparing classified briefings for Congress on the intelligence “degradation” they say could occur if there is no deal in place by August.

The deadline is considered critical because of a series of secret one-year wiretapping orders that were approved last August under a controversial temporary wiretapping law. The law allowed the National Security Agency to use blanket court orders to focus on groups of suspected Qaeda terrorists based overseas. But those orders are growing staler by the day, officials said, and will begin to expire this August if nothing is done. (Wiretaps intended for Americans already require individual warrants issued by a secret court, known as the Foreign Intelligence Surveillance Act court, or FISA court.)

“We’ll start losing intelligence capabilities,” Senator Christopher S. Bond of Missouri, the ranking Republican on the Intelligence Committee, said in an interview.

Civil libertarians who oppose the government’s broadened surveillance authority said a return to the more restrictive rules might be just what is needed to restore necessary checks on the government’s powers.

But government and Congressional officials said in interviews that they saw it as a dangerous step backward. A return to the old rules, they said, would mean that government lawyers, analysts and linguists would once again have to prepare individual warrants, potentially thousands of them, for surveillance of terrorism targets overseas.

Telecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said. In some instances, the broad orders given to the companies starting last August cover tens of thousands of overseas phone numbers and e-mail addresses at one time, people with knowledge of the orders said. A senior intelligence official, speaking on condition of anonymity, said the administration was concerned that reverting to the older standards and requiring individual warrants for each wiretap would create a severe gap in overseas intelligence by raising the bar for foreign surveillance collection.

In some cases, the government might simply be unable to establish in court why it suspected that a foreign target was connected to terrorism. Part of the problem, officials said, is that communications going from one foreign country to another sometimes travel through a telephone switch on American soil and, under some interpretations of the older rules, could not be tapped without an individual warrant.

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The so called civil libertarians, aka, terrorist privacy rights advocates, will not be held responsible for the failure to collect the dots, much less connect them. They will blame government officials for not jumping through the ridiculous hoops Democrats constructed in the past for the FISA program which of doubtful constitutionality to begin with when it comes to intercepting enemy communications in a time of war.

What the Bush administration should do is attempt to get a declaratory judgment from the Supreme Court that it does not need approval of the FISA court to defend the country in a time of war. So far, the courts have rejected the ridiculous claims of the trial lawyers attempting to attack the telecoms who cooperated in the intercepts. Perhaps they are delaying the legislation to give their lawyer buddies a chance for an appeal.

The Democrats are playing a dangerous game of chicken with the lives of the public and for the benefit of their trial lawyer contributors. If we failed to stop an attack because of their egregious obstruction of terrorist investigations, the Democrats could well have the blood of innocent civilians on their hands.