Breaking the Law

Glenn Greenwald, " McConnell/Mukasey: Eavesdropping outside of FISA is 'illegal'

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."