Sunset (Il)logic

On Friday, AG Michael Mukasey and DNI Mike McConnell sent a letter to the House Intelligence Committee assuring them that the House's failure to extend the Protect America Act had already led directly to lost intelligence. What's pertinent here is the reasoning. Namely, that the phone companies who've cooperated with the government, at times illegally, are reluctant to continue doing so without assurances that they bear no financial liability.

While the fear mongers on the right would have you believe that the moment the PAA expired, every surveillance tool in the government arsenal went out the window and left the country sprawled out on its back waiting for an imminent attack, the letter paints a different story. In fact, Mukasey and McConnell hardly broach a subject other than the telecoms' cooperation, saying that "although most partners intend to cooperate for the time being...they may well cease to cooperate if the uncertainty persists."

Uncertainty, of course, refers to the inclusion of retroactive immunity. Bear in mind that phone companies working on a court order filed through the very broad processes laid out by the amendments to FISA in August of 2007 would bear no liability. If you're working within the rule of law, there aren't consequences. What's at stake, rather, is the telecoms' liability for past actions, when laws were broken. So the suggestion here is that cooperation within the law is impossible given that someone may be held accountable for past law breaking.

In some places, Mukasey and McConnell seem to be on the cusp of grasping the logical inconsistencies, yet so far away. For instance, they say "expiration would create uncertainty concerning...the continuing validity of liability protection for those who assist us according to the procedures of the Protect America Act." Here, again, they put forward an obviously disingenuous argument. No company is liable when acting within the law. That's why the law's there. What the issue is here is what happens to companies that acted outside the law in the past, and that has precisely zero bearing on what happens legally in the future.

This is par for the course, after all. The administration makes its argument on one set of circumstances, while its opponents are more worried about reality. Such as dragnet surveillance. What's infuriating is the framing of the debate in this manner. No one really thinks the government shouldn't be able to gather intelligence from foreign agents. Some just think it should be done within the rule of law and not done by funneling domestic phone and internet traffic through secret rooms in AT&T's offices.

Indeed, the House had offered an intelligence bill which would have extended the PAA for three weeks to allow for more deliberation, an act which was shot down by the Republicans. The House Democrats are willing to grant the President everything in the Senate bill sans retroactive immunity. Clearly, a bill which would not prevent the government from collecting foreign surveillance. So, who's the real villain here? Congress for offering a bill that would extend all necessary provisions for continued surveillance? Or the administration who refuses to accept it - thereby causing a dangerous loss of intelligence, if you believe the AG - because someone might have to answer for breaking the law in the past?

To be clear, foreign targets have no recourse in the American court system. The telecommunications industry has nothing to fear from them. It's domestic traffic that's the issue here, and it's egregious for this administration to continue suggesting that failure to include amnesty for AT&T in this bill puts foreign surveillance at risk.

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