Someone Get This Man a Copy of the Statute

(updated below)

Andrew McCarthy is a real piece of work. His latest op-ed piece for the National Review angrily lashes out at the New York Times for its recent article (which I discussed here) discussing various concerns about the new FISA bill. McCarthy describes the new bill as "very tepid and temporary" and is astounded that the Times would suggest that there is anything people to be concerned about. McCarthy is particularly perplexed by this passage from the Times article:

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States. These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns. For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.

McCarthy responds:

That’s strange, I thought. The bill does not appear to address the acquisition of business records at all, much less work a startling change allowing government to seize them willy-nilly. Nor does it seem to have anything to do with the execution of physical searches or “trap and trace” surveillance. Nor, indeed, is there anything remotely “new” about such “powers” — business records, searches, and “trap and trace” (or pen-register) monitoring (by which government gets phone and email usage information but not the content of communications) are long-time staples of both law-enforcement and intelligence investigations. They are controlled by elaborate statutory procedures which the reform bill does not seem to alter.

But has McCarthy even read the bill? Here's the key language from Section 105B of the new law:

Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States . . .

The phrase "notwithstanding any other law" is pretty clear. It means that this provision trumps all of the "elaborate statutory procedures" to which McCarthy refers. I honestly don't know how anyone who has read this bill can say that it "does not seem to alter" pre-existing statutory requirements.

Moreover, just because the bill doesn't specifically mention business records or physical searches or "trap and trace" surveillance doesn't mean that its language doesn't cover them. Section 105B authorizes "the acquisition of foreign intelligence information concerning persons reasonably believe to be outside the United States." That's incredibly broad language. And the definition of "foreign intelligence information" is itself incredibly broad; it includes anything that "relates to . . . the national defense or the security of the United States" or "the conduct of the foreign affairs of the United States."

McCarthy claims that the bill is limited to "telecommunications" and that, by suggesting otherwise, "[t]he Times is engaged here in the worst kind of journalistic abuse." According to McCarthy, anyone who suggests that the statute might apply to things like business records, physical searches, and the use of trap and trace devices is indulging in a "fringe construction unsupportable by any coherent reading."

But McCarthy doesn't even try to explain why the statute should or will be construed so narrowly. He's too busy hurling invectives at the New York Times. I agree with McCarthy that James Risen and Eric Lichtblau did a poor job of explaining why the language of the new statute is broad enough to include things like searches of business records. But, then again, they're not lawyers. McCarthy is a former federal prosecutor. So what's his excuse for refusing to grapple with the actual language of the statute? If he's going to accuse these Times reporters of "journalistic abuse," perhaps he could at least devote a sentence or two to explaining why the language of the statute can't or won't be read the way they suggest.

The truth, I suspect, is that McCarthy didn't even bother to give the statute a careful reading. He just didn't understand what Risen and Lichtblau were referring to and assumed they were indulging in some crackpot legal theory. After all, the debate in Congress wasn't about physical searches or business records, so why would anything like that fall within the scope of the statute?

The fact is, though, there is nothing in this new bill that limits its application to surveillance of telecommunications. Quite the contrary. The language in section 105B is straightforward and very broad, and can reasonably be interpreted to apply to all sorts of acquisitions. And, by its clear terms, section 105B applies "notwithstanding any other law."

Furthermore, as McCarthy knows all too well, the DOJ is not in the habit of interpreting statutes in ways that unnecessarily circumscribe the powers of the executive branch. Right now there are lawyers at the OLC writing memos interpreting this new law, and as sure as the sun sets in the West, they will read the law in whatever way puts the maximum amount of power in the hands of the executive branch. To suggest otherwise is to insult everyone's intelligence.

This law is not a "narrow," "tepid" reform measure. It is a broad new grant of authority to the executive branch, and if McCarthy had bothered to read it, he might well understand what other people are talking about.

UPDATE: McCarthy isn't the only one refusing to engage the actual statutory language. This op-ed in the New York Times today is infuriating. The author, former National Security Council member Philip Bobbitt, devotes the entire op-ed to criticizing the critics of the new FISA legislation, accusing them of playing politics. Though he doesn't devote a single sentence to discussing the actual language of the bill or the substantive concerns critics have raised, he blasts "those people who don’t bother giving reasons, don’t explain or give arguments, who prefer to traduce the people with whom they disagree by attacks on their characters, which are presumed to be insufficiently stalwart."

Here's how Bobbitt begins his op-ed:

Congress just passed, and President Bush hurriedly signed, a law that amends the legal framework for the electronic interception of various kinds of communication with foreign sources. Almost immediately, commentators concluded that the law was unnecessary, that it authorized a lawless and unprecedented expansion of presidential authority, and that Democrats in Congress cravenly accepted this White House initiative only for the basest political reasons. None of these widely broadcast conclusions are likely to be true.

You would think that Bobbitt might spend the remainder of the piece explaining why these things are "not likely to be true." But he doesn't. He spends a few paragraphs talking about how technology and the nature of the threats we face have changed (something no one contests) and then accuses critics of the bill of being ignorant partisans. There's not so much as a passing reference to any of the actual provisions or language in the new statute.

This is, essentially, a credential op-ed. It's a series of conclusory statements unaccompanied by evidence or analysis and then signed by someone with relevant credentials in the field. These kind of op-eds are completely useless. They don't advance anyone's understanding of anything, and I don't understand why newspapers like the Times continue to publish them. Why not give this valuable opinion space to someone actually willing to analyze the law?