Think about what we’ve been hearing from the White House in this debate. The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill. So if we take the President at his word, he is willing to let Americans die to protect the phone companies.So why, four months later, is a new bill on the brink of passage that grants telecom immunity and guts pre-PAA FISA requirements? And why is Barack Obama among those who have dropped resistance?
A tentative hypothesis: it's not Bush or the remaining Rovian Republican operatives that Democrats are afraid of. It's Mike McConnell. A critical mass of Senators and Congressmen may believe that the Director of National Intelligence is telling the truth when he insists, repeatedly and categorically, that the intelligence agencies' ability to track and foil terrorist plots will be crippled if the spies are forced to seek individual warrants for suspects abroad whose calls and emails they want to track.
I don't know how credible McConnell is. Some of his specific talking points -- e.g, that each FISA warrant requires 200 man-hours (El Paso Times, 8/22/07), or that a German plot allegedly foiled last September could not have been cracked without the powers granted by the PAA (New York Times, 9/11/07)-- have been contradicted or forcefully debunked. His more sweeping claims -- for example, that without the PAA warrants the country would lose “50 percent of our ability to track, understand and know about these terrorists, what they’re doing to train, what they’re doing to recruit and what they’re doing to try to get into this country” (NYT, prior link) -- are impossible to verify; if there's any evidence in support, it's classified. Let's say that the man does not seem immune to overstatement.
On the other hand, McConnell was for years head of the NSA, the country's main electronic intelligence dragnet. He is by all accounts highly competent. He claims to be nonpartisan, says he's voted for people in both parties (though he doesn't say for what offices or in what proportions). He also says that he has spoken to over 260 Senators and House reps in his advocacy for the FISA bill he wants (El Paso Times, link above). Presumably, the information he gives at least the top echelon is more specific than what he tells the public. And he certainly doesn't equivocate.
The gist of what he's told those 260 lawmakers-- in groups, one-on-one, at whatever level of classification -- is surely exactly what he's told all of us: that intelligence capability will be crippled if we weaken the orders granted by last summer's PAA; that al Qaeda has reconstituted itself and is working flat out to attack us as destructively as possible; and that those who don't give him what he wants will be enabling the next attack.
My guess is that a Senator might imagine only one thing worse than having been painted "soft on terror" after the next attack. And that's to have been soft on terror before the next attack. ("Soft on terror" may be a stupid phrase for having preferred preserving civil liberties to allowing effective if perhaps unconstitutional antiterror activities. But whatever you call it, the fear of enabling the next attack must be powerful.)
Is it credible to think that by insisting that our intelligence personnel seek individual warrants to listen in on foreign-to-U.S. phone calls, Congress might enable plotting terrorists to evade detection? I don't know. But even a suspicion that such might be the case might be enough to convince many senators and congressional reps to give the intelligence chiefs what they want. Including a presumptive President.
Of course, whether McConnell is right or wrong has no bearing on whether the kind of non-particularized warrants he wants are Constitutional. What if he's right, and they're not?