The New York Time's Eric Lichtblau is all a flutter today because, as his headline reads, "In Wiretap's Stead, Uncertainty." Harrowing, terrifying, "uncertainty!" Lawyers are "nervous," the administration is offering "warnings" that the nation is now "vulnerable" and that we have "already lost valuable counterterrorism intelligence." People are apparently saying, "Look, we've got an expired piece of legislation!" Cue the scary trumpet glissando!
Naturally, what's bothersome about the insistent, alarmist tone of the piece is that on balance, Lichtblau demonstrates that there's really nothing substantive to base a whole slew of crazy worries upon. "The issue," he reports, "is less about harm that has actually been done than about the prospect that such harm will be done because of uncertainty in the government and the telecommunications industry over what is now allowed." The only thing alarming, to my mind, is that there are officials who somehow believe that "what is now allowed" is somehow "uncertain":
Even with the law lapsed, intelligence officials continue to be able to put wiretaps on terrorism and espionage suspects under directives that were approved before the expiration of the six-month law, the Protect America Act, which gave the government a freer hand in deciding whom to wiretap without court approval.
Theoretically, intelligence officials would have to revert to older -- and, they say, more cumbersome -- legal standards if they were now to stumble onto a new terrorist group that was not covered by a previous wiretapping order. But that has not happened since the surveillance law expired, administration officials said.
There's so much here that begs for a degree of scrutiny that Lichtblau doesn't bother to apply. Did the Protect America Act really give the "government a freer hand?" Shouldn't wiretaps have some sort of "court approval?" Are "intelligence officials" correct when they insist that the lapsed law makes things "more cumbersome?" Lichtblau doesn't know and doesn't care to ask. There's one significant source willing to push back on the impending-doom storyline, however:
One lawyer in the telecommunications industry, who spoke on condition of anonymity because wiretapping operations are classified, said he had seen little practical effect on the industry's surveillance operations since the law expired. Most operations appear to have continued unabated, the lawyer said.
Yes. That's a lawyer for the very industry that the administration is falling all over itself to secure liability immunity for, basically saying, "Feh. The PAA expiration isn't impacting this effort at all." You sort of get the feeling that maybe, just maybe, if the government went back to serving actual warrants for wiretaps, that would go a long way to mitigating the uncertainty, that seems to be, in this telling, more terrifying than terrorism itself.