Today’s Must Read

Here’s a guide for future intelligence chiefs who want to take a shortcut around the law. Start out with a genuine problem. Propose a genuine solution, but build into it a bit more leeway for intelligence collection. Negotiate slowly and deliberately. Then use the threat of a terrorist attack at the end of the congressional session to ram through an evisceration of the problematic law, carving out from it all meaningful protections for American citizens. Watch a stunned opposition acquiesce.

Both the Washington Post and the New York Times present that general outline to explain how the Bush administration gutted the Foreign Intelligence Surveillance Act earlier this month. As reported earlier, the FISA Court ruled in March — the Post provides the date — that foreign-to-foreign communications, previously unprotected under FISA, required warrants for surveillance as they passed through U.S. communication switches. Admiral Michael McConnell, the director of national intelligence, saw the National Security Agency “losing capability,” in the words of one intelligence official, due to a surveillance backlog generated by the Court ruling.

Now, in the event of a genuine emergency, FISA allows for a 72-hour grace period for the NSA or the FBI to conduct surveillance before applying for a warrant. So it’s safe to assume that surveillance in these cases was more run of the mill — listening in to generate leads for further surveillance and subsequent investigation. Tweaking the law to overcome that obstacle was uncontroversial when McConnell proposed it in April to the Senate intelligence committee. According to a White House official quoted by the Times, “there was no real argument on the need for a fix.” Talks proceeded through the spring.

The sticking point, according to the Post, was that Sen. Jay Rockefeller (D-WV), the committee chairman, wanted the White House to provide documentation on its 2001-2007 warrantless wiretapping efforts:

While the exchange was not a quid pro quo, the senators essentially said, “You give us the documents we want, and we’ll give you the legislation,” according to an administration official present, who said the response was “no.” McConnell argued that the Democrats were “looking backwards” and that he was the “forward-looking guy,” a witness said.

Famously, the Bush administration defied a subpoena on the surveillance program issued by the Senate Judiciary Committee.

While the talks subsequently stalled on the FISA bill, the administration expanded its demands for what the bill needed to include. To prevent another 9/11, McConnell argued, Congress needed to relent on several key provisions of FISA. No warrant should encumber intelligence collection. Any foreign-to-domestic communication should be fair game. And such surveillance shouldn’t just target terrorists, but rather “all foreign intelligence” — a critical expansion of the so-called Terrorist Surveillance Program, which the president has repeatedly stated involves “known” members of al-Qaeda. Yet in interviews with the Times, McConnell still says that the problem was “I’m sitting here signing out warrants on known Al Qaeda operatives that are killing Americans, doing foreign communications,” even though his fix is much broader.

In order to pass the legislation as the Congressional calendar drew to a close, McConnell invoked the prospect of another terrorist attack on the U.S., something the recent National Intelligence Estimate pointed to in sobering language. One administration official called the heightened threat environment “a forcing function” for the bill, but says the timing of the NIE relative to the FISA restructuring was “fortuitous,” rather than a deliberate strategy. Democrats clearly believe otherwise, according to the Times:

“There was an intentional manipulation of the facts to get this legislation through,” said Senator Russ Feingold of Wisconsin, a Democrat on the Intelligence Committee who voted against the plan. …

Representative Jane Harman, Democrat of California, said the White House “very skillfully played the fear card.”

“With the chatter up in August,” Ms. Harman said, “the issue of FISA reform got traction. Then they ran out the clock.”

Both pieces portray the rest of the negotiations in late July as essentially foreordained after that. The Democrats, wanting to go into the Congressional recess talking about Iraq instead of FISA, were determined to get the issue off the table by passing a bill. McConnell, backed by Vice President Dick Cheney and the Justice Department, turned their requests into non-negotiable demands, even as the Democrats moved toward their expanded positions. After an acrimonious last-minute debate, the administration got nearly everything it wanted, with the exception of grandfathering in liability protections for telecom companies that aided the warrantless surveillance efforts before 2007 and a six-month expiration date on the whole bill.

Whether the Democrats will scale back the Protect America Act of 2007 is anyone’s guess. They vow to amend the law, but Feingold noted to the Times that the administration’s strategy was vindicated:

The White House, Mr. Feingold said Friday in an interview, “has identified the one major remaining weakness in the Democratic Party, and that’s its unwillingness to stand up to the administration when it’s making a power grab regarding terrorism and national security.”

If Feingold is correct, the administration will have every incentive to hold out for renegotiating the Act until the six-month sunset deadline. That will put the issue right in the thick of the presidential primaries, in which two of the leading Democratic contenders are Senators. And a winning strategy for the White House may very well be vindicated yet again.