I've got some family in town so I'm a little slow reacting to a chaotic day in Congress yesterday. There's a whole bunch of spin going around about the Protect America Act (PAA), which might expire without being renewed. The truth, as usual, is a lot simpler than some of the bull that's been flying around.
First, some plain facts. The PAA expiration is not the expiration of FISA, the Foreign Intelligence Surveillance Act. FISA defines the rules by which the US can spy on communications between foreigners and those residing here. One of the main provisions is a secret court that approves wiretap warrants. PAA is an add-on to FISA, which changed some of the FISA rules to make them more lenient. FISA will still be the law of the land no matter what happens, as it has been for 30 years.
Second, the issue with PAA is telecom immunity. The law grants retroactive immunity to telecoms that provided their customers' communication to US spy agencies in defiance of then-current US law. A coalition of progressive and civil liberty groups have opposed granting immunity to telecoms. Some conservative Democrats have supported it, so the PAA made it through the Senate with telecom immunity attached. The House may be less favorably disposed to telcom immunity, so House leadership proposed a 21-day extension to the PAA to allow more debate in the House. Republicans opposed it, and the extension failed
Wednesday because it lacked the support of blue-dog Democrats as well as a couple of liberal Democrats who oppose PAA in general.
Which brings us to yesterday. The Republicans, with the help of the media, engaged in some mau-mauing with the aim of painting Democrats as unpatriotic pawns of Al Qaeda. Here are two examples:
On his blog
, Randy Kuhl makes the claim that FISA could have hampered the search for a missing US soldier in Baghdad last year. According to Kuhl, the search for kidnapped Spec. Alex Jimenez and two other soldiers was hampered because "searchers waited 10 hours" while authorization for a wiretap was sought from the Justice Department. Some of Jimenez' kidnappers could have been communicating via a phone which had signals routed through a switch in the United States, and the FISA court had earlier ruled that such signals can't be intercepted without a warrant.
The facts in the case, as laid out by the Washington Post
, show that FISA was not the issue here. As any reasonable person would expect, the Army began searching for the missing soldiers immediately, and they requested the wiretap 86 hours into the search. Since FISA allows an emergency 72 hour warrants with the consent of the Justice Department, all of the delay was in the Justice Department, and some of it was due to tracking down Alberto Gonzales. If the Jimenez case shows anything, it shows that the Bush Administration's Justice Department is (typically) incompetent because they're unable to come up with a streamlined process to implement the emergency provisions of FISA.
Kuhl should be more careful about re-printing Republican spin, and he ought to also be careful when that spin makes the Army look like they sat on their hands waiting for bureaucrats instead of searching for one of their own.
The second intimidation attempt that happened yesterday was a walk-out by Republicans
, ostensibly because they were upset over the threat to the country posed by the PAA. Their walk-out conveniently coincided with a vote
on a contempt of Congress citation for Josh Bolten and Harriet Miers.
To Randy Kuhl's credit, he was one of the few (about 30) Republicans who did not engage in the walk-out. He voted against the contempt citation.
My overall take on this is that the debate on telecom immunity is important, that the supporters of immunity have overplayed their hand, and that in the end we need to have some transparency and accountability when telcoms break the law. Most importantly, there is nothing unpatriotic about wanting the rule of law to apply to telecom companies. We aren't going to "let the terrorists win" if we have oversight on domestic surveillance, and it's good to see that some House Democrats have a vertebra or two left on this matter.