We need a new wiretapping law, eh

“All of our legal architecture is founded on the notion that telecommunications intercepts involved putting bugs in walls or hooking interception devices to pairs of copper wires.”

Sound like a familiar complaint? It should, if you’ve been following the debate to amend the Foreign Intelligence Surveillance Act. But this quote comes from one of our neighbors to the north.

Jack Hooper, a former deputy director of the Canadian Security Intelligence Service—basically, their CIA—says that the nation’s wiretapping law is outdated, and that it’s inhibiting Canadian intelligence’s ability to monitor suspects abroad.

In something of a twist on the U.S. debate, a Canadian Federal Court judged ruled that a number of suspects CSIS wanted to monitor were enough of a threat to bug in Canada, the court had no authority to order a wiretap of Canadian citizens abroad.

According to the Globe & Mail, whose Colin Freeze (btw, how cool is that name?), interviewed Hooper, “Counterterrorism agencies have spent years hoping to run wiretaps against Canadian suspects who live abroad. Yet a lingering loophole means the spies continue to go ‘blind and deaf’ whenever Canadian targets board outbound planes.”

“Technically we can do it, but legally we can’t,” Hooper says.

Listen to all the parallels between the Canadians’ conundrum and the Americans’.

Mr. Hooper argued that the country’s spying laws are legacies of an analog age, hampering investigations in an era of mobile phones, the Internet, cheap jet travel and so-called “homegrown” terrorist threats.

“God forbid. If something really bad happens, the question will be asked: ‘What were you doing with this guy when he was in Country X?'” he said. “And we’ll say ‘Well we could have covered him, but we were proscribed by law.’ “

Canada’s equivalent of the National Security Agency apparently can lend a hand sorting through signals intelligence to domestic law enforcement agencies. As long as the intel was obtained legally, the cooperation is allowed. As the Globe & Mail reports, CSIS’ attempt to get a warrant for overseas surveillance “was an attempt to further marry the sister agencies’ capabilities.”

Wow, they really did it.

Defying expectations, the House adjourned for recess Thursday and will let the Protect America Act expire tomorrow. Unwilling to try and iron out differences between their bill and a version passed this week by the Senate, lawmakers will take up the thorny issues of telecom liability and oversight of intelligence surveillance at a later date. I don’t think anyone would have predicted that in a blinking contest with the White House, Nancy Pelosi would emerge the victor. But here we are.

Senior intelligence officials, including the director of national intelligence, have been making the media and talk show rounds. They’re being challenged on the question of whether intelligence activities will cease when the PAA expires. Surveillance already in place will continue, but the intelligence community will have to go through the “old” process of obtaining warrants if they want to start new surveillance. Those rules will be dictated by the Foreign Intelligence Surveillance Act (FISA), barring any orders to the contrary by the president—and don’t count that out.

The big question, though, seems to be whether or not the telecom companies assisting in any new surveillance think they will have legal protections going forward. I have pinged some national security lawyers on this, and the consensus is that they would have immunity for whatever they’re doing now under PAA, and that said immunity would continue until those activities stop, regardless of whether the law is in effect. (Surveillance authorized and conducted under PAA can continue uninterrupted for one year.) But presumably any new surveillance would not have immunity, since it would be taken up under FISA.

Think of it this way. It’s like giving a high-school student a permanent hall pass during third period French, but not during fourth period chemistry. The companies will find themselves now in the position of operating different kinds of surveillance under different standards and with different protections. Democrats have a point that letting PAA expire will not bring the government’s intelligence efforts to a halt. But letting the law expire does nothing to clarify the rules of the road.

Would Democrats let Protect America expire?

Comments by House Majority Leader Steny Hoyer suggest that Democrats might be preparing to let the Protect America Act expire this week. They would then use the next few weeks to pass a longer-term law.

Voice of America has a roundup of member positions this morning, and quotes Hoyer.

Hoyer asserted to reporters that even if the foreign intelligence surveillance law [PAA] expires, Americans will not be in danger and the intelligence community will be able to continue intercepting communications of suspected terrorists.

Expressing disappointment with the vote [yesterday not to extend PAA for 21 days], Hoyer does not expect Democrats will attempt another short-term extension, although he wouldn’t rule this out, saying Democrats will use coming weeks to work on a bipartisan bill acceptable to President Bush. “In the event that the Protect America Act is not extended, we nevertheless intend to use the next 21 days for the same purposes, that is to try to see if we can reach agreement between the House and the Senate, on a bill that would enjoy broad support in the House and the Senate,” he said.

Interesting. I had predicted that the Dems would vote for the Senate bill that passed earlier, but Hoyer is certainly putting another route out there. This move would, of course, inspire the wrath of Republicans and the White House, but that would presumably inspire Democrats to work quickly on a new law. I still think the Dems will vote to pass the bill this week, but we’ll see.

IN THE WEEDS CONTENT: To clear up some of this business about whether surveillance activities will be put at risk if the PAA is allowed to expire. Here’s how this works. Under the law, surveillance activities are conducted per the authorization, or certification, of the attorney general and the director of national intelligence. Essentially, they identify targets, and the intelligence community starts monitoring them. That surveillance is allowed to continue uninterrupted for one year. It does not expire when the PAA expires.

So, for example, if the government begins a new surveillance today, that surveillance can continue until February 14, 2009. It would not have to be shut down at the end of this week, when the PAA expires. And it’s important to note, what’s included in said surveillance is classified. But based on the law, and a lot of reporting, we know that the intelligence community is looking at whole groups of communications; we’re not only talking about single wiretaps here.

Now, if the PAA expires, the government would have to begin any new foreign intelligence surveillance under FISA. In other words, they’d have to go to a judge before they begin surveillance, which would be limited to individual targets and would be subject to the same rules of the road that were guiding surveillance before PAA was enacted. When intelligence officials say that without PAA their efforts will be hindered, that’s because they would be slowed down, legally and bureaucratically. Remember that when the National Security Agency’s warantless surveillance program was revealed, senior officials said that they had to go around FISA because that law was unsuited to the technology landscape—full of cell phones, e-mails, instant messaging—and to their need to engage in “hot pursuit” of suspected terrorists. There are lots of other reasons officials don’t want to revert to FISA, but for immediate purposes, this is probably the most important.

It’s not clear whether or not the secret orders the president issued in October 2001—the ones that kicked off the NSA’s warantless program—would come into play if PAA were no longer in existence. I have to presume that the president could issue new orders if he felt that was necessary, to continue surveillance activities in lieu of the PAA. Bottom line, our intelligence-gathering efforts are certainly tied up in this law, but they are not hanging on it.

House seems poised to approve Senate’s FISA bill

The House voted down a Democratic measure that would have extended the Protect America Act for another 21 days. Joining the unanimous Republican vote were 34 Democrats (list below). In breaking ranks, they have positioned the House to take up a Senate bill that makes major changes to the Foreign Intelligence Surveillance Act, and which passed yesterday evening by an overwhelming majority. The President wants to sign that bill immediately.

It’s increasingly unlikely that the House won’t pass the legislation, which includes immunity for telecom companies that helped the government conduct electronic surveillance inside the United States after 9/11. Mike McConnell, the Director of National Intelligence, appeared in the Oval Office with President Bush this morning, who made clear he would veto the House attempt to punt the law for three weeks.

Given House Intelligence Committee Chairman Silvestre Reyes’ rather tepid remarks on immunity yesterday, I doubt the House will put up much of a fight. The Democratic split today shows that the chamber doesn’t have the votes to fend off the Senate bill. More importantly, it will be seen as a revolt and evidence that House Speaker Nancy Pelosi and Senate Leader Harry Reid have failed to hold a coalition against the Bush administration on intelligence activities that the Democrats have protested for more than two years.

The Protect America Act expires on Saturday. The ACLU has just called upon House members to let it expire, a game of chicken that Democrats have shown zero willingness to play. I think we’ll have a new law on the books before the week is through.

For the record, here’s the list of Dems who voted not to extend PAA for three weeks. There are some surprising names here. Dennis Kucinich is hardly a friend of the administration on this issue. And Maurice Hinchey was a thorn in the White House’s side over the president’s halt of a Department of Justice inquiry into NSA-related activities.

UPDATE AND NOTE: A reader correctly points out that many of the following members voted against the PAA in its original incarnation. In fact, only five members–Altmire, Boren, Boswell, Peterson, and Walz–voted to extend the act today. The reader notes, “How could you vote to extend something you didn’t vote for in the first place. They [members voting no] WERE NOT siding with republicans.”

I note, however, that they were still breaking with their party, and, whether intentionally or otherwise, helping force the House to act on the Senate bill this week.

Jason Altmire (PA)

Dan Boren (OK)

Leonard Boswell (IA)

Michael Capuano (MA)

Jerry Costello (IL)

Lincoln Davis (TN)

Peter DeFazio (OR)

Lloyd Doggett (TX)

Bob Filner (CA)

John Hall (NY)

Maurice Hinchey (NY)

Rush Holt (NJ)

Dennis Kucinich (OH)

Barbara Lee (CA)

John Lewis (GA)

Tim Mahoney (FL)

Jim Moran (VA)

Christopher Murphy (CT)

Patrick Murphy (PA)

Frank Pallone (NJ)

Donald Payne (NJ)

Collin Peterson (MN)

Steven Rothman (NJ)

Loretta Sanchez (CA)

John Sarbanes (MD)

Jan Schakowsky (IL)

Jose Serrano (NY)

Tom Udall (NM)

Tim Walz (MN)

Maxine Waters (CA)

Mel Watt (NC)

Lynn Woolsey (CA)

David Wu (OR)

Clinton and Obama avoid future weak-on-terror ads

Sens. Hilary Clinton and Barack Obama will avoid a spate of weak-on-terror ads by John McCain or his surrogates, particularly those alleging the senators voted to deny intelligence agencies the power to monitor terrorists’ phone calls or e-mails. That’s because when time came to vote on a new intelligence surveillance law, the presidential candidates didn’t vote.

The Senate passed S. 2248, the FISA Amendments Act, by an overwhelming majority of 68 to 29. Clinton and Obama were two of three senators listed as “not voting.” Republican Lindsey Graham was the third. John McCain, the presumed Republican presidential nominee, voted in favor of the bill.

As I noted earlier today, Clinton didn’t vote on the most controversial amendment to the bill, granting immunity from lawsuits to telecom companies that assisted the government with warantless surveillance activities. That amendment passed and is in the final bill that now heads to the House. (Obama voted against immunity, McCain for it.)

The Clinton campaign told Marc Ambinder at The Atlantic, “Senator Clinton was unable to vote earlier, but she has made her strong opposition to this legislation crystal clear.” The senator was in Texas campaigning.

The FISA Amendments Act was arguably the most important piece of national security legislation taken up by the Senate in the past year. Presumably, the Democratic candidates’ non-votes will shield them from Republican accusations that they voted against the intelligence community. Maybe they saw the RNC Daisy ad. There’s also a decent chance that Obama and Clinton, despite statements to the contrary, actually think the Senate has passed a decent bill, one that a future president would find advantageous.

“This is the sound of settling.”

With apologies to Death Cab for Cutie.

The Senate has passed a bill that amends the Foreign Intelligence Surveillance Act (FISA) and offers immunity to companies that assisted the government with electronic surveillance after the 9/11 attacks. Now it’s onto the House, which has already passed its FISA fix, without the immunity clause. What are immunity’s chances of survival?

Well, House Intelligence Committee Chairman Silvestre Reyes, D-Tx., has just released a telling statement. The meat is in the second paragraph.

Last November, the House passed strong legislation that would modernize our surveillance authorities to monitor terrorists abroad while preventing government spying on Americans. As we begin to negotiate with the Senate, I plan to advocate strongly for the House bill, which contains important protections for the constitutional rights of Americans

We have also begun to review the documentation provided recently on the alleged role played by the private sector in the President’s warrantless wiretapping program. These documents raise important questions, and it will take some time to gather enough information to make a determination on the issue of retroactive immunity.

No passionate opposition to immunity. No defense of the House’s previous vote not to grant it. “It will take some time.”

This is a far cry from the stand that Democrats in the Senate took earlier today, when they tried to strip immunity from the bill that now goes to the House. Immunity is looking mighty healthy. (BTW, when the Senate Intel Committee looked at those documents Reyes is reviewing, they came down in favor of immunity.)

In related developments, House Judiciary Committee Chairman John Conyers, Mich., released a letter a few hours ago that he sent to Fred Fielding, the White House counsel. Conyers demanded that his committee members be read into the National Security Agency’s terrorist surveillance program, so that they, like their Intel Committee colleagues, could assess whether or not immunity was warranted. Conyers made it clear he didn’t think it was.

As for Reyes’ assessment that it’s going to take some time to hash through said documents, the House has until Friday. That’s when the latest extension of the Protect America Act, the temporary grant of warantless surveillance authorities, expires, and the White House has said it will not approve any more of them. Unless the Dems are prepared to face the onslaught of charges that they’re letting down the country’s guard against terrorists, look for a final bill before the end of the week.

Presidential candidates split over telecom immunity

The Senate has voted to grant immunity to telecommunications companies that assisted the government with electronic surveillance in the wake of the 9/11 attacks. Here’s the roll call of votes.

The immunity amendment is part of the Senate Intelligence Committee’s bill to modify the Foreign Intelligence Surveillance Act. The three senators running for president split over the immunity amendment.

Sen. Obama voted to strip it (so, he voted for no immunity).
Sen. McCain voted not to strip the amendment (voted for immunity).
Sen. Clinton did not vote.

No surprise on the first two. But Clinton‘s non-vote is most interesting. She was never considered fully onboard with the anti-immunity crowd, represented most vocally in the Senate by Christopher Dodd (D-Conn.). Presumably, this hands Obama an arrow to fire at his rival, who has criticized the former Illinois state senator for his record of “present” votes.

But I’m not sure how sharp this arrow is. Obviously, the liberal wing of the Democrat party will have some problems with her non-position position. But I don’t see how this costs her anything in the primaries, or in the long run. But let’s see how she votes on the full bill, or if she does.

RNC goes Daisy

The Republican National Committee has a new ad warning that Harry Reid, Hillary Clinton, and Barack Obama are playing into terrorists’ hands by trying to block permanent changes to surveillance law. Not that Republicans haven’t been playing tough over this issue. They’ve also tried to assert that if the Protect America Act is allowed to expire, all intelligence-gathering will come to a halt. That’s not true, although it could be harder to monitor new targets.

But what’s noteworthy about this RNC ad is that we’ve seen it before, in the Johnson-Goldwater campaign from 1964. The famous (or infamous, if you supported Goldwater) “Daisy” spot was only aired once, but may have so successfully stoked Americans’ fears about nuclear annihilation that it helped LBJ win the election. The RNC ad all but says Americans will be killed by Al Qaeda if Clinton or Obama win the presidency. Expect to see the full-fledged Daisy version as we get closer to November.

Putting that aside for the moment, what’s perhaps most politically notable about the GOP-Dem fight over the Protect America Act is that the Democrats have been unable to capitalize on their position for their own gain. They don’t really want to bankrupt telecommunications companies who helped the NSA monitor phone calls and e-mails after 9/11, even though they did so without traditional warrants. And neither Democrats nor Republicans believe that the law shouldn’t be changed to make it easier for intelligence agencies to do their job. The politics of this debate have become so basic that there’s little room left for serious debate or discussion of broader implications from a change to law, and whether those should be taken into consideration.

I think that if you assess this fight purely on the politics, Democrats are once again coming out on the losing end. They seem either unwilling or unable to assert an alternative to the kind of line the RNC is putting out in its video, which may have some fair points but obviously is not designed to encourage an intellectual discussion. This is all very strange, because Democrats have proposed dramatic changes to surveillance law that their traditional allies in the civil liberties community find repugnant. It’s not as if Dems are truly obstructionist on this stuff. But they are letting themselves be painted as such.

DNI cautions senators on Iran intel

Saying he wanted “to be very clear in addressing the Iranian nuclear capability,” Director of National Intelligence Mike McConnell told a Senate committee today that Iran continues down a path that could lead to construction of a nuclear weapon. Reiterating what appears to be a coordinated line of thinking, McConnell said that Iran is still enriching uranium and building missiles capable of delivering a nuclear warhead. These are two of the three legs in the stool of Iran’s nuclear ambitions.

While not refuting the judgment of his intelligence agencies that Iran halted the third leg, a set of covert, military-run nuclear weapons activities, McConnell clearly wanted to tamp down the dramatic headline of the recent National Intelligence Estimate, which gave the strong impression that Iran’s nuclear program is, at least temporarily, on ice.

We judge with high confidence that in fall 2003, Tehran halted its nuclear weapons design and weaponization activities, as well as its covert military uranium conversion and enrichment-related activities, for at least several years. Because of intelligence gaps, [the Department of Energy] and the [National Intelligence Council] assess with only moderate confidence that all such activities were halted. We assess with moderate confidence that Tehran had not restarted these activities as of mid-2007, but since they comprised an unannounced secret effort which Iran attempted to hide, we do not know if these activities have been restarted.

For good measure, McConnell added, “I note again that two activities relevant to a nuclear weapons capability continue: uranium enrichment that will enable the production of fissile material and development of long-range ballistic missile systems.”

This is now the official counterargument to the NIE. The fact that these statements come from the man who is ultimately responsible for that document is, as best I can tell, unprecedented.

Israel adds a (much anticipated) dissent on Iran NIE

The list is growing. Israel has now come out against the United States’ National Intelligence Estimate on Iran, declaring that the country is three years away from obtaining offensive nuclear capabilities. Mossad chief Meir Dagan presented that assessment to a Knesset committee Monday, and added that the NIE “pulls the rug out from under” attempts to halt the Iranian program diplomatically, “leaving Israel to face the threat alone.”

Who is out there actually defending the NIE? Israel now joins the French, the President of the United States, and the U.S. Director of National Intelligence in concluding that Iran is still on the path to a nuke, despite the NIE’s judgment that Iran halted its nuclear weaponization program years ago. Like the other NIE skeptics, Israel homes in on two key pillars of a nuclear program, including uranium enrichment and ballistic missile construction, and concludes that Iran’s nuclear ambitions are alive and thriving. (President Bush made this case publicly, as well.)

Israel’s departure with the NIE differed in that it rebuked the document itself as diplomatically counterproductive, something that, so far, only staunch critics of the intelligence community in the United States have done. Israel’s reaction is hardly surprising, of course, given its particularly precarious position in the region, and its long-standing insistence that Iran is either close or very close to developing a nuclear weapon.

But the fact that Israel is now on record against the U.S. conclusion is an important development, and could signal the start of a new international alliance, backed by President Bush himself, against the NIE’s conclusion, which will continue to be painted as rosy, overly optimistic, and fundamentally off-the-mark because it doesn’t rank the enrichment and missile programs highly enough in the final calculation. Will the authors of the NIE defend their work again, as they did so forcefully when their key judgments were declassified late last year? Stay tuned.

In the meantime, here’s something from the vault on Israel’s historic insistence that Iran was practically within reach of a nuke. In October 2006, I sat in on a meeting between then-Congressman Curt Weldon, a Pennsylvania Republican, and Daniel Ayalon, then Israel’s ambassador to the United States. (I was writing a profile of Weldon, and the two men had previously scheduled this meeting in Weldon’s office.) The conversation turned to Iran’s nuclear ambitions, a topic that had possessed Weldon’s interest. Like the Israelis, he insisted that Iran was closer to a weapon than most people thought, and that the United States perilously underestimated the regime.

Weldon told Ayalon that Iran would have a nuclear weapon in two years. A military attaché who had accompanied Ayalon to the meeting replied, with a smile, “We say less.” It was a chilling moment, in and of itself. But it also stood out because, at the time, such a dire assessment was at odds with most experts’ opinion, as well as the judgment of the CIA and other U.S. intelligence agencies. They estimated then that Iran’s weapons program was at least five years from maturity and probably more, given Iran’s difficulty producing the necessary materials for a bomb. It’s worth noting that, around the time of this meeting, the intelligence community would have been in the early stages of its reassessment of the Iranian program, which resulted in last year’s NIE and the about-face on the previous assessment.