McConnell/Mukasey: Eavesdropping outside of FISA is "illegal"

In their latest fear-mongering letter, the Terrorist-combating duo let slip an odd admission.

Published February 23, 2008 1:46PM (EST)

(updated below - Update II - Update III)

The White House yesterday escalated its most brazen, Orwellian campaign of the last eight years -- shrilly accusing House Democrats of jeopardizing the nation's security by allowing the Protect America Act to expire even though it's the President and House Republicans who blocked any extensions of that law. As the Associated Press pointed out at the bottom of its story:

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.

Ponder what it says about our press corps that the White House knows it can (a) block all attempts to extend the PAA and then (b) spend the next several weeks blaming Democrats for helping the Terrorists by allowing the PAA to expire. I know I've made that point before, but this one is so brazen, so transparent and audacious, that it just hasn't yet ceased to amaze.

In any event, the two honorable, apolitical, completely trustworthy Bush cabinet members -- DNI Mike McConnell and Attorney General Michael Mukasey -- yesterday released a letter addressed to House Intelligence Committee Chairman Silvestre Reyes which is basically a written adaptation of the scary 24 video produced this week by the House Republicans, breathlessly claiming that the nation "is now more vulnerable to terrorist attack and other foreign threats" because of the PAA's expiration.

The letter contains the now-standard fear-mongering claims that telecoms will stop cooperating (and even have stopped cooperating already) with government surveillance in the absence of the PAA (an absence caused single-handedly by the President) -- i.e., "we have lost intelligence information this past week," etc. But there was one passage in the letter which seems significant and worth highlighting.

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."

According to Bush's Attorney General and DNI, then, this is what is called "illegal" behavior:

WASHINGTON, Dec. 15 -- Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.

So, you see, the Bush administration is in a really tough bind here, because they would really like to eavesdrop outside of FISA because they want to protect us all and keep us safe, but they just can't do that, because eavesdropping without complying with FISA's requirements is "illegal," and that's something they would never, ever do.

UPDATE: The claim in the Mukasey/McConnell letter that telecoms aren't cooperating now turns out to be completely untrue since, as The Washington Post reports, "administration officials told lawmakers that the final holdout among the companies had relented and agreed to fully participate in the surveillance program."

But even if telecoms were refusing to cooperate, the reason for their refusal was not because they don't have retroactive immunity, but rather, it's because there is alleged uncertainty over the legality of current surveillance requests, and uncertainty over the ongoing validity of the prospective immunity provided by the PAA, because the PAA expired. If the PAA had been extended, they would be completely protected with prospective immunity for future surveillance cooperation. And, of course, the PAA would not have expired had Congressional Democrats had their way -- they wanted to extend it until they could agree to a new bill. Thus, any alleged refusal on the part of telecoms to cooperate is exclusively the fault of Bush and House Republicans for forcing expiration of the PAA. That's just true as a matter of basic logic.

But leave all of that aside for a moment. 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?

UPDATE II: C&L has produced an excellent video response to the House Republicans' 24-copying, "Give-us-what-we-want-or-die" video from earlier this week. And, as I've linked to before, this animated video on telecom amnesty and FISA by Mark Fiore is basically perfect:

UPDATE III: This might be the best GOP FISA quote yet, from Sean Conway, the chief of staff for Colorado Republican U.S. Sen. Wayne Allard (h/t Zappatero):

And the House has just simply said, we're not going to accept this, because we want to have, you know, terrorists be able to sue phone companies if they're listening to our conversations. It's insane.

The most difficult job in America -- it's really impossible -- is satirizing Republican exploitation of Terrorism. No matter how far the satire goes, the actual fear-mongerers always easily surpass it. House Democrats want Terrorists to be able to sue the phone companies. That's what this is about.

Conway also beat his chest and said this:

I don't know about you, but if I'm a Democrat out there, you'd best, better hope that something does not happen in this country while this bill lapses.

Republicans like Conway are so eager for a Terrorist attack to happen that you can almost hear them drooling in anticipation over the political gain they imagine they'll be able to squeeze from it.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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