Mukasey and FISA: Choosing Sanity & Survival (Update: Scary; Dems Exposed)

Attorney General designate Michael Mukasey’s opening statement to the Senate Judiciary Committee:

…the issue between authority and liberty is not between a right and a wrong -- that never presents a dilemma. The dilemma is because the conflict is between two rights, each in its own way important. That is why I have told you during those discussions, and may have occasion to repeat again here today, that protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security, just as is the gathering of intelligence to defend us from those who believe it is their duty to make war on us. We have to succeed at both.

Heritage Foundation:

The contrast could not be starker between the nebulous, hypothetical harms that privacy absolutists assert could result from the incidental collection of information through electronic surveillance programs and the concrete harms that could result from the lack of robust foreign intelligence-gathering programs to detect and prevent acts of domestic terrorism.

Mukasey’s lesson from his experience as a judge in a terrorism case:

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Mukasey’s recommendation:

Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.

Editor of libertarian Reason:

When it comes to terrorism, the question is not how we can best serve our government but how our government can best serve us—in particular, the extent to which security against violations of our rights by the state should be traded for security against violations of our rights by terrorists. From the dismissive way he treats critics of anti-terrorist measures such as the PATRIOT Act, it's clear Mukasey worries more about the latter.

Left's Glenn Greenwald’s live blog of confirmation hearing:

When asked by Leahy if the President has the power to violate FISA, Mukasey makes clear that he shares the right-wing view that the President does. He begins by citing the statement of Griffin Bell at the time FISA was enacted -- "Limits of FISA do not reach the limits of presidential authority. There is some gap between where FISA left off and where the Constitution permits the President to act." He thus espouses the DOJ's theory justifying warrantless eavesdropping even in the face of a statute making it illegal….

Mukasey volunteered that the Fourth Amendment bars only "unreasonable searches," and while it does go on to describe warrants, "there is very scant case law on whether intelligence gathering (as distinct from gathering of evidence for criminal cases) actually requires warrants."

[Democrat Senator Russ] Feingold told him: "In light of the clear statutory language of FISA, I find your equivocating somewhat troubling." FISA says that it is the "exclusive means" for conducting surveillance, clearly meaning that Congress did not leave any room for President to eavesdrop in violation of it. Feingold: "This is a very important principle. The Attorney General should be comfortable with this."

According to Feingold, anyway. Most Americans are not comfortable with a government that doesn’t protect their safety, or those who excessively hamstring that key function. The Bush administration has worked in an unclear environment of new threats, and been willing to cooperate with Congress in concern for civil liberties. The administration should not be willing to allow any to take that to unnecessary excess, beyond constitutional or sensible, that would allow Americans’ basic security to be harmed. Heaven forbid another grave strike against our country, what will such Democrats excuse themselves with if they are confronted by grieving families? Let's start with these grieving families?

UPDATE:
Incredible. Scary.

Rules Committee Chair Louise Slaughter did something unusual however, in the hearing on legislation to extend the Foreign Intelligence Surveillance Act--she announced at the start of the hearing that no amendments of any type would be allowed for debate. Committee Democrats followed Slaughter's lead and voted against amendments to: authorize surveillance of those engaged in the creation of Weapons of Mass Destruction; authorize surveillance of foreign terrorists outside the United States; extend liability protection to telecommunications companies that relied on government directives and shared information deemed necessary for protection from terrorist attack; and, allow a debate on the Bush administration's alternative.

This is a reckless way to handle national security. House Democrats have once again shut Republicans out of the debate completely (as they did just yesterday in debate on the Internet Tax Freedom Act). They've used their position of power to give terrorists working with WMD a 'grace period' while U.S. intelligence agencies go to court for permission to tap them. They've abused the process to preserve the fatal flaws in their own bill:

· The Democratic bill specifically requires a court order to monitor conversations between terrorists abroad and people in the United States. So if Osama bin Laden called an al Qaeda cell in the United States, the intelligence community could not listen to the communication without a court order.
· It imposes FISA requirements on the US military--creating a perverse situation where it's easier to kill a suspected terrorist than monitor his calls.
· It creates a database of U.S. citizens suspected to be terrorists--a database that must be shared across agencies and with (notoriously leaky) members of Congress and their staffs.
· In specifically denying protection to telecommunications companies, it exposes those companies to lawsuits and creates a strong incentive for them not to cooperate with future surveillance activities.

UPDATE II:
The AP calls it a Republican “gambit,” that the sole amendment they were allowed by Democrats to offer, Democrats not allowing any others, to the seriously flawed bill reads ”nothing in the bill ‘shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization…from attacking the United States or any United States person.’ ” I call it the Democrats afraid of being exposed for their true selves, and Republicans winning on the merits. The AP continues: “Democrats were forced to pull the bill from the House floor with no certainty about how it might be revived.
A Democratic staff member said the bill will not be rewritten but substantive amendments may [now] be allowed when it finally does come up for a vote…”

The New York Times carries this common-sense Republican observation:

Representative Heather A. Wilson, Republican of New Mexico, said that Speaker Nancy Pelosi “underestimated the intelligence of the American people and the bipartisan majority in the Congress to understand what matters most — preventing another terrorist attack.”