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President Bush "Degrade[s]" Our Intlligence Capability -- All in the Name of Immunizing Telecoms for Past Unlawful Conduct

By Jack M. Balkin

In a letter written yesterday to the Chair of the House Intelligence Committee, Attorney General Mukasey and Director of Intelligence McConnell alarmingly reveal that the expiration of the Protect America Act one week ago has caused us to "lose intelligence information this past week," has led some "partners" (i.e., telecom companies) to "delay[] or refuse[] compliance with our requests to initiate new surveillances of terrorists and other foreign intelligence targets under existing directives," and "has led directly to a degraded intelligence capability."

Now, this alarm is probably grossly exaggerated, for reasons thoroughly described by Chairman Reyes. After all, even apart from the preexisting, underlying FISA authorities, broad programs of surveillance that were approved under the PAA continue in effect for one year after their approval, as the first substantive paragraph of the Mukasey/McConnell letter implicitly acknowledges: The Administration has made requests under the continuing programs, and "most partners intend to cooperate for the time being." Some "partners" allegedly have expressed "deep misgivings" about the legality of these continuing authorities, but the Administration is "working to mitigate these problems and [is] hopeful that our efforts will be successful." Of course, the telecom "partners" fully understand that authorities issued under the PAA extend for a year. Thus, any "misgivings" presumably concern whether Administration requests are consistent with the PAA programs that were authorized. [UPDATE: This Washington Post story reports that mere hours after Mukasey and McConnell issued their letter, "administration officials told lawmakers that the final holdout among the companies had relented and agreed to fully participate in the surveillance program."]

But be that as it may, let's assume the letter is correct, and for some reason expiration of the PAA has indeed "led directly to a degraded intelligence capability."

That would truly be terrible -- indefensible, even. Yet whose fault is that? Not Congress. The House actually voted to extend the PAA. Why didn't that extension become law? Because President Bush said he would veto the House's PAA extension.

Why would the President veto an extension of legislation that is so critical, that is necessary to prevent a "degradation of our intelligence capability"? Well, OMB offered one and only one reason for the veto threat -- because the House bill did not "provid[e] retroactive liability protection."

That is to say: For President Bush, retroactive immunity for telecoms -- who would only be liable in the first instance if they knowingly cooperated with unlawful requests from the Administration -- is more important than preventing the degradation of our capabilities of surveilling terrorists. Well, at least he can say he stick to his convictions . . . .

There's another very interesting aspect of the Mukasey/McConnell letter, too, which Glenn Greenwald has highlighted. In his letter, Chairman Reyes wrote that "[i]n an emergency, NSA or the Federal Bureau of Investigation (FBI) may begin surveillance immediately, and a FISA Court order does not have to be obtained for three days. The former head of FISA operations for the Department of Justice has testified publicly that emergency authorization may be granted in a matter of minutes." In their response, Mukasey and McConnell argue that this is mistaken because before such surveillance begins the AG must determine that there is probable cause that the requirements of FISA would be satisfied -- a determination that takes time.

Most interestingly, however, they also state that to proceed as Chairman Reyes suggests -- that is to say, arguably outside of FISA's requirements -- "would be illegal."

Perhaps this was merely a slip. But what M&M are stating here is that to engage in electronic surveillance without satisfying FISA's requirements (or the requirements of the PAA) would be illegal. And yet that is exactly what the NSA did for more than five years under its so-called "Terrorist Surveillance Program." Mukasey and McConnell are absolutely right that such surveillance would be, and was, unlawful. But that hasn't been the Administration's view in the past. Recall that they have argued at length that such surveillance is authorized by (i) the September 18, 2001 Authorization to Use Military Force and (ii) the President's Article II powers.

Curious.

And it prompts this question: If, in fact, our intelligence capabilities are now being degraded, why doesn't the President simply reauthorize the TSP itself, pursuant to his alleged AUMF and Article II powers?

Answer: Because now the telecoms won't in a million years cooperate in such an extra-legal program. And that's a very good thing -- an underappreciated virtue of the controversy and litigation surrounding the TSP. Moreover, it further reveals the true reason the Bush Administration is willing to degrade our intelligence capabilities in the service of telecom immunity -- not because telecoms will be reluctant to accede to lawful orders (as statutes require them to do), but instead because the Administration does not want the telecoms ever again to hesitate when the Administration asks them to cooperate in surveillance that appears to be unlawful under FISA and other relevant laws.

Full post as published by Balkinization on February 23, 2008 (boomark / email).