Rep. Silvestre Reyes (D-Texas), Chairman of the House Permanent Select Committee on Intelligence, deserves much credit for conducting a hearing on administration proposals for FISA.

In the climate infected by this administration, and given the penchant by top officials of our Intelligence Community to do exactly what Mr. Bush and Mr. Cheney want – no more, no less – it takes political courage to perform congressional oversight.

Yesterday’s hearing, held in the Agriculture Committee big room in Longworth Office Building, had testimony by Director of National Intelligence Michael McConnell and  DOJ Assistant Attorney General Kenneth Wainstein. McConnell gave most of the testimony, seconded somewhat by Wainstein, a ruddy-faced, energetic redhead who looks either as though his real name is McWainstein or he's an example of protective coloration from longterm work with personnel with names like McNulty and McGovern.

As Reyes said in brief opening statements, one of the most critical issues of our time is how to balance protection with civil liberties. Firmly he went on, “For over 200 years, we have had both liberty and security,” and the objective for now is to continue having both. But as Reyes remarked, what the White House now wants is to be able to intercept Americans’ calls “without a warrant and without real supervision by the judicial branch,” along with wording in the FISA legislation – the Foreign Intelligence Surveillance Act – vague enough to permit “warrantless physical searches of Americans’ homes, offices and computers.”

At issue were administration – i.e. Bush-Cheney – objections to any limitation or oversight of sweeping government surveillance. More specifically, at issue was H.R. 3356, which the U.S. House attempted but failed to pass in August 2007, to amend FISA, and which as Rep. Reyes pointed out essentially gave the administration what it required in latitude for surveillance in emergency situations.

Up at bat for the administration were McConnell and Wainstein, supporting a version of FISA to include “liability protection for the private sector” along with sweeping latitude for government electronic surveillance. In other words, when telecommunications companies – what used to be called ‘the phone company’ – are compelled to go along with government demands for masses of customer records, the legislation as envisioned by the administration would prevent the companies from being sued.

Tabling that bit of lagniappe for the telecommunications industry for the moment, the big dispute for the day centered, as it usually does, on the notion of a terroristic emergency. The key administration talking point is almost always the same one: some official suggests that an emergency in which Americans’ lives are at stake could arise so suddenly that the Intelligence Community would be placed in the awful position of having to choose between saving lives and . . . complying with the law!

This proposition has only to be stated clearly for its unfoundedness to be clear. When was the last time you saw anyone in this administration reluctant to break the law?

Here we go:

1. Under FISA, emergency provisions are already in place. For one, there is a 72-hour period AFTER a hypothetical emergency, during which the IC powers that be can explain why they were unable to proceed to the FISA court, if indeed they were genuinely unable. In other words, if shortness of time in an emergency prohibits compliance with the law beforehand, the agents get a grace period AFTERWARD.
2. Even if there were no such de jure protection for saving lives and preserving public safety, there would be de facto protection for doing so. Very, very seldom does a Richard Jewell situation arise; his wouldn’t have arisen, if he hadn’t been perceived as a ‘southern redneck’. Nobody in this administration or any other administration would go after CIA/NSA/DIA/FBI officers for an on-the-spot lapse in complying with regs in a provable life-and-death.
3. In fact, if you notice, nobody connected with this administration, and very few people connected with the military or with contractors in Iraq, for example, have been convicted even for actual abuses having nothing to do with protecting Americans. What is the administration line here? – that personnel would be more liable to get into trouble for doing something right than for the gravest offenses?
4. Speaking of offenses, does anybody remember the presidential pardon? Again, what is the administration line here? – that the White House would be less likely to pardon an official who did something right?
   

Et cetera.

As Reyes pointed out crisply, the common-sense perception is, and always would be, that “We shouldn’t be worrying about whether we’re legally compliant when American lives are at stake.” “There is that capability of making that phone call [afterward, in an emergency, to explain] to the Attorney General.”

“All it takes is a phone call.”

These points have been made, but in the Orwellian universe created by the White House, FOX and MSNBC among others, they never seem to take effect. In yesterday’s hearing, McConnell got tangled up in a would-be historical anecdote about a cloudy situation in which our intelligence operatives on the ground were prevented from preserving safety by those pesky regs.

Btw, what is illustrated by these congressional hearings among other things is that all congress members are not alike. Rep. John Tierney (D-Mass.) is consistently well-prepared, efficient, and acute; his constituents should reelect him with alacrity. Rep. Darrell Issa (R-Calif.) is illuminating in a different way: hands down, Issa is the number-one candidate for likeliest to say things aloud that his fellow Republicans would prefer unsaid.

When the topic of government surveillance of our troops arose, it was Issa who reminisced that our soldiers in World War II, Korea and Vietnam always knew their phone calls and mail would be censored. When you’re in the military, you get the military concept of privacy rights. He’s right, of course; notwithstanding the Washington rhetoric sanctifying our troops, letters home from our troops always come under government scrutiny. It’s just something you don’t always hear the bigtime military appropriators in Congress, particularly of the chickenhawk persuasion, talking about. In fact, aside from Issa, you virtually never hear it talked about in the GOP. When Rep. Heather Wilson (R-New Mexico) asked in the hearing, “Could the Protect America Act allow the warrantless collection [monitoring] of the private email of an American soldier to his family?” she was clearly taken aback when McConnell answered, “Yes.”

Reyes responded to Issa, “I want to thank my colleague from California for making clear that we may be spying on our own soldiers.”

The bottom line is that government surveillance in combination with government secrecy is most liable to protect, not American citizens, but government misfeasance and malfeasance. This administration has demonstrated a tendency toward corruption and abuses time and again. It has demonstrated time and again that it cannot be trusted, if any administration could be trusted, with extensive and unsupervised powers to monitor others. Even the most recent instance of Assistant U.S. Attorney J. D. Roy Atchison, the Reagan-era hire for AUSA in Georgia’s Atlanta federal district before he went to Florida in the late 1980s, now up on charges of pedophilia, reminds again of the potential for abuse when power is cloaked in secrecy.

Power corrupts, and absolute power corrupts absolutely.