Which has been the most pressing issue facing the nation over the past three months: A.) Casting free trade pacts with U.S. allies in Latin America and Asia into perdition; B.) challenging the constitutional authority of the president to hire and fire executive branch appointees; C.) expanding socialized health care; or D.) defending the nation against terrorist attack?
If you answered A, B or C, then you're qualified to serve in the leadership of the Democratic majority in Congress. If you answered D, then you can thank Adm. Mike McConnell.
As director of national intelligence, McConnell went before Congress in May to describe a dangerous legal logjam that had developed at the secret Foreign Intelligence Surveillance Court. The court is a creation of the 1978 Foreign Intelligence Surveillance Act, which determines where and how U.S. intelligence agencies can legally conduct eavesdropping operations within the United States.
According to a public report issued to Congress by the Justice Department, the court approved 2,176 warrants in 2006 for surveillance operations. The court denied only one warrant application. The numbers suggest that our law enforcement and intelligence professionals are doing a pretty good job tailoring their efforts to address real or potentially real threats to U.S. national security, not innocent citizens or paranoid critics of George W. Bush.
All that changed in January. In the aftermath of a New York Times story that revealed elements of a broader terrorist surveillance program, the Bush administration — under pressure from Congress — agreed to bring previously exempt parts of the program into the FISA process.
The number of warrant requests presented to the FISA court has presumably skyrocketed. And at least one of the 11 judges on the court has construed a new authority to approve warrants for entirely foreign communications that happen to pass through fiber optic cables and giant communications switching hubs in the United States.
In other words, due to changes in technology, U.S. pre-eminence in international telecommunications and the whims of judges on a secret court who are unaccountable to the people, foreign surveillance operations that have for decades protected Americans and been beyond the purview of FISA are now subject to warrants. And, according to the Wall Street Journal, some of the judges are demanding to approve the warrants in advance of the wiretaps, not retroactively — which is frequently essential in the fast-moving, digital-cellular world.
That's why McConnell alerted Congress about the emerging intelligence gap. "We're actually missing a significant portion of what we should be getting," he told the Senate Intelligence Committee on May 1.
But the senators and representatives have had more important work to do this summer than fix FISA flaws. As more terror plots unfolded in Britain and the United States, as a National Intelligence Estimate warned of a heightened threat environment, as the commander of U.S. Northern Command warned that al-Qaida has cells present in this country, Democrats in Congress have had different and more partisan priorities.
In a mad dash for the doors before August recess, they passed a stopgap measure that gives them political cover in the event of a terrorist attack while they're on vacation. And they have the gall to tell critics of the bill that its civil liberties shortcomings are the fault of McConnell and the administration.
The tragedy here, other than a national security official trying to fend off an attack on the homeland with one arm tied behind his back, is that there are serious issues involving technology and civil liberties that need to be addressed in the FISA law. And people who are accountable to the electorate, not anonymous federal judges, should make critical oversight decisions of surveillance operations.
A responsible Congress would have gone to work on these issues months ago. Unfortunately, such issues are of trivial importance to the Democratic leadership.
