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.