Resume Debunkifying Function By: Mark W Adams

Honestly, some things you just can't let go unanswered.

The one question, really the only question on the current state of FISA, why didn't the GOP agree to extend the Protect America Act another 21 days to sort out what is to be done on Telecom immunity. Director of National Intelligence, Adm. Mike McConnell, was asked that up front on CNN's Late Edition. It's the one question he would not answer. (Update: Turns out, the whole gang was full of it.)

Via Andy McCarthy at The Corner, we are linked to the even more wingnutty Weekly Standard up to their usual nonsense complete with spin, half-truths, bullshit, lies and a complete rewriting of recent history on the FISA/Telecom Amnesty bill.

Let's dive right in, shall we.

Hear No Evil
Are House Democrats serious about national security?
by Matthew Continetti

How much ya wanna bet that his answer is, "No?"

On February 16, last year's bipartisan legislation governing the collection of foreign intelligence and protecting from liability all persons who comply with federal directives to assist in such collection--the law otherwise known as the "Protect America Act of 2007"--expired, having exhausted its six-month, 15-day statutory lifespan. At which time the federal government's ability to pursue suspected terrorists and emerging threats was dealt a serious blow. You can thank House Democrats for the whole sorry mess.

Fair enough. We are now forewarned that as patriotic citizens, we must analyze the curiously named Protect America Act's failure to become law with any eye towards blaming Democrats for putting us all in horrible danger, and completely ignore the issue of retroactive and prospective immunity for the telecommunication companies who facilitated warrantless wiretapping when they didn't think they needed such a law to make their actions legal, and the role of George Bush in all this.

It gets better worse.

The Democratic leadership denies this, of course, having adopted an Alfred E. Neuman "What, Me Worry?" approach to national security.

Ah yes, foreign policy advice from someone who reads Mad Magazine. This should be good. Of course what's really telling about the whole piece is that the word immunity -- the reason for the impasse -- isn't mentioned until half-way through, once he's done spinning the facts to suit their version of history.

By the time one gets through page one of this two-page propaganda tool, we find out that "probable cause" is some kind of freakish liberal scheme deserving of scare quotes as it imposes some kind of "stringent FISA procedures" before a search warrant may issue -- which we all know is a lie since FISA allows initiation of surveillance three full days before any warrant might issue.

But any new wiretaps the government seeks will have to go through stringent FISA procedures, which require the government to show "probable cause" that a "U.S. person" is a "foreign power" or an "agent of a foreign power" before a search warrant targeting him can be issued.<

We also find out, simply by dropping the name Richard Clarke, the old 1978 FISA law doesn't work -- even though the Patriot Act, as well as Patriot II modified it already. Shocking, that in order to spy on you or me or any other American citizen, the Bill of Rights might apply. Jesus, I'll bet if it was the Second and not the Fourth Amendment they were pissing on there'd be hell to pay.

Another piece of Constitutional Tom-foolery was this tidbit:

It turns out, further, that the NSA wasn't spying on Americans willy-nilly. Most of the warrantless surveillance targets were foreign nationals located overseas, though the program also surveilled[sic] the 500-odd people in the United States with whom those overseas targets were communicating. Nor was it at all clear whether or not FISA superseded the president's plenary, constitutional authority to "protect and defend" the United States from attack. No court has ever said so. And no administration, including Carter's and Clinton's, has ever accepted FISA as determinative of its constitutional power.

Where does one start? How about the low-lying fruit first. The President of the United States swears an oath specifically laid out in Article II of the Constitution, to wit:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Not to split hairs, but if it were Bush's sworn duty to protect us from attack, they should have started impeachment proceedings on September 12th, 2001.

Now it's very comforting to know that the concerned folks at Weekly Standard have guaranteed all of out civil liberties, and that "most" of people our government spied on were nasty foreigners or people here talking to nasty foreigners -- all of which kept us safer. Too bad that's a lie. Not to mention the fact that we don't require any kind of warrants or other permission to spy on foreign nationals, only Americans -- never did.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency, which was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of foreign-related phone and Internet traffic, that the unfiltered information was swamping investigators. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

Equally comforting is that previous Democratic Administrations, including the one that originally signed FISA into law, might not have felt bound by it's perfectly reasonable requirements. I suppose by not mentioning how Reagan or Bush(41) felt about FISA made the argument more persuasive. Also absent from consideration is the current POTUS's obviously disingenuous pronouncement that we get warrants whenever we need to.

Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.

This fight was never about protecting us, except to the point where people's fears can be exploited and Democrats be made to look bad. It's about power, control, information and keeping everyone involved out of prison.

There really are so many freakishly outlandish wingnut memes floating through Continetti's article it's almost remarkable he didn't land a job on Dick Cheney's staff. He drops the bombshell that the FISA court system degraded due to an overload of cases because the "Bush administration was weak" after the Democrats reclaimed Congress -- but neglect to mention that now, unlike the situation last summer, the court has no backlog whatsoever.

Now one can talk about burying the lede, or just come out and accuse young Continetti of obscuration, but he doesn't get to the point, "retroactive immunity," until 1000 words into a 1600 word column. Mind you, this is a guy who thinks himself clever comparing Democrats to a cartoon character, Alfred E. Newman, but thinks Ted Kennedy is "disgusting" for saying Bush is "willing to let Americans die to protect the phone companies."

And then the sophistry begins in earnest.

But the crux of the anti-immunity Democrats' argument seems to be that because the original Terrorist Surveillance Program was "illegal" and the phone companies were complicit in its "illegality," they therefore should be liable for damages resulting from such "illegal" invasions of privacy.

This is wrong on all counts. The Terrorist Surveillance Program was not illegal. And the telecoms were engaged in a good-faith effort to help the federal government protect the United States from attack. Isn't that how we should want corporations to behave in a time of war?

Hold on Sparky, not so fast.

It's simple logic, if you can follow along. If the program were "legal" as you say, and that journalism degree from Columbia is all the credentials we need to bow down to your authority on this, then there is no need to worry whether the Telecom's get immunity or not, yes? Shouldn't we at least let a court of law be able to make that determination is it is in question? Isn't that what they are for?

Oh Noes! You don't say? According to our junior editor at the Weekly Standard, we never should submit "national security decisions to an unelected and unaccountable judiciary."

Courts are thus, irrelevant, unnecessary, a quaint vestigial institution of a bygone era. We're at WAR don't you know. (I'm not sure which war he's talking about. Iraq, Afghanistan, George's war on Terra, or the wingnut war on liberals -- it all plays the same.)

Forget the fact that we've been at war before, this one's different I guess because the "enemy" isn't a superpower with enough nuclear weaponry to destroy the planet 10 times over, or a genocidal maniac with legions of storm-troopers blitzing through Europe. No, this time it's some dudes in a cave in Pakistan who might highjack a bus and call ahead for reservations in Atlanta -- which is all the warning we'll need to push to color-coded duct-tape threat light to orange -- just before the next election, and between the conventions of course to dull any Democratic advance in the polls.

But I digress, and there's a wee bit more insanity to debunk.

The fight over retroactive immunity should be seen for what it is: a backdoor attempt to shut down the president's post-9/11 intelligence gathering efforts and return the intelligence community to a pre-9/11 footing, when the FISA court governed almost all counterterrorist surveillance and the standards of traditional law enforcement applied more often than not to investigations of suspected terrorists.

Yeah, that horrible "law-enforcement" approach that Scotland Yard used to nail the liquid bomb plotters, or the FBI used to disrupt a planned attack on JFK airport. I used to think that the folks who mocked the "law enforcement approach" just wanted to kill anyone who remotely looked like a terrorist (whatever that means). I didn't know they just wanted to do away with laws altogether. Live and learn.

Perhaps the most egregious lie in the entire article resides in the penultimate paragraph:

It was fear of the FISA court, after all, that prevented Minnesota FBI field agents from searching the laptop of al Qaeda terrorist Zacarias Moussaoui--the suspicious student at the Pan Am International Flight Academy in Eagan, Minnesota--even though they knew about Moussaoui's jihadist beliefs and connection to a Chechen terrorist.

This theme, The Moussaoui Myth, of course is lifted almost directly from another "Standard" publication, completing the circle as it were. The only problem is that nobody presented the evidence of Moussaoui's suspicious flight training or terrorist ties to anyone at the Justice Department to make any decision on whether they should get a FISA warrant. The ball was dropped, period. The red flags weren't bright enough. Neither FISA nor "fear" of FISA kept anyone from doing their job. They just didn't.