Mike McConnell Is Flat Wrong

Mike McConnell, Director of National Intelligence, has written a misleading op-ed in today's New York Times. Mr. McConnell's piece is a plea for Congress to renew the Protect America Act. I and other Democrats in Congress have been working to correct problems with the law as currently written, so that we can provide our intelligence community with the tools they need to ensure the security of our country needs, while upholding the rule of law that acts as the foundation for that security.

In what has become a sad pattern, Mr. McConnell, like many in this Administration past and present, tries to convince the public that we must abandon the rule of law to protect the telecom industry from being held accountable if they broke any laws. He writes, "[I]t is critical for the intelligence community to have liability protection for private parties that are sued only because they are believed to have assisted us after Sept. 11, 2001."

Mr. McConnell is flat wrong.

To suggest that the telecoms are being sued "only" because they assisted the government after September 11th is disingenuous at best. Companies like AT&T and Verizon find themselves in court today not because they assisted the government by handing over their customers' personal and private information - but because they appear to have broken the law by doing so. The telecoms are being sued because they did not receive a warrant - yet they went ahead and helped the Administration anyway.

This belief that the Administration and anyone who helps them is above the law is on display throughout his NYT piece. Mr. McConnell writes, "Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits," suggesting these companies acted out of love of country. They may well have - but we can no more project a motive of patriotism onto the telecoms' illegal actions than greed or fear.

Why not? Because the Administration has forbidden the American people from learning exactly what happened when this information was handed over without warrant. That is in part why the continuation of these cases is so important. By granting telecoms retroactive immunity, as Mr. McConnell advocates, and allowing for warrantless surveillance, we would essentially be saying that when it comes to intelligence gathering, there is no need for anyone in any circumstance to follow any law or even the Constitution so long as it is broadly defined as a matter of "national security."

That's ridiculous - and if anything, it puts our national security further at risk.

Clearly, I don't think we should insist on a warrant in order to monitor entirely foreign communications passing through the U.S. - between, say, Afghanistan and Pakistan. Current law already reflects that and should continue to. But in the instances when we are talking about spying on Americans to protect national security--and those instances do exist--we must continue to demand a warrant, as proscribed by the Fourth Amendment and followed by the Foreign Intelligence Surveillance Act (FISA), even if it is issued after-the-fact.

That is why I've placed a hold on any FISA legislation that includes retroactive immunity. No person, company or Administration is above the law - no one. And if my hold is not honored, I will filibuster to stop retroactive immunity from becoming law.

I believe we can't protect our country if we fail to protect our Constitution and the rule of law. It is precisely by upholding our rights that we become safer and more secure at home. The opposite path is fundamentally flawed, inherently dangerous, and, apparently, embraced by our Director of National Intelligence. Given all that this Administration has done to trample our Constitution, it may not be surprising - but it remains disappointing.