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The Other FISA Debate

Amid the titanic fight last week over the expiration of the terrorist surveillance law, there was another, less intense debate brewing below the surface.

This wasn't your standard Republican vs. Democrat debate. It cut across all lines, pitting executive branch agencies against each other, prompting disagreements among lawmakers of the same party, even (gasp!) dividing reporters. This fight wasn't over whether the expiration of the Protect America Act put the country in danger. It was over when the thing actually expired.

First, some background: Congress passed the PAA in early August as a temporary step in the process of modernizing the Foreign Intelligence Surveillance Act. The bill included language saying it "shall cease to have effect 180 days after the date of the enactment of this Act." That meant it expired Feb. 1, and in late January, Congress passed and President Bush signed a 15-day extension of the law.

So when did that extension expire? And if the expiration itself was so monumentally important, why didn't anyone seem to know the answer?

As recently as Thursday, the Justice Department was telling reporters that it expired at midnight on Feb. 16. Now, "midnight" can actually be confusing (which day is midnight on?), so what Justice meant was that it expired when Friday night became Saturday morning. But at the same time, the White House was saying the law expired Saturday, and that actually meant Saturday night (or Sunday morning), not Saturday morning.

On Wednesday, for example, President Bush said the law expired "at midnight this Saturday." But what did he mean? Saturday night? Or Saturday morning? (Technically, midnight Saturday is 12 a.m. Saturday morning, right?)

All week, confusion on the subject reigned. In the roughly 97 press conferences they held on the subject, senior members of Congress -- experts on the law, presumably -- alternated between saying Friday and Saturday. Before one such briefing Friday, reporters in the Capitol waiting for the event to start argued with each other about when the bill actually expired (Capitol Briefing wrongly insisted to his colleagues that it was Friday night/Saturday morning).

That confusion crept into press coverage. Stories about the law were all over the map in describing when it would expire. In the interests of full transparency, this Capitol Briefing item said "Friday night" and this Washington Post story said "Friday," while this Post story said "Saturday."

What's the right answer? There is now, finally, agreement between all parties concerned that the law's extension expired at 12 a.m. Sunday, meaning the last moment the law was in force was at 11:59 p.m. (and 59 seconds) on Saturday night. So at the stroke of midnight, when Saturday night became Sunday morning, America -- depending on which side you believe in that other debate -- either did or did not become naked in the face of terrorist aggression.

The nice part of this story is that Congress's Democratic leaders and the White House are now completely in sync on this one narrow point. As one House Democratic aide pointed out, it's the only thing they actually agree on.

By Ben Pershing  |  February 17, 2008; 6:00 AM ET
Categories:  Agenda , Branch vs. Branch  
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Our paid servants in the House abandoned their duties this weekend and took a long paid vacation, knowing that an essential tool to protect Americans would expire the day after they deserted their post in a time of war.

It's baffling to me how some Americans will not stand up and defend themselves, their families, or fellow Americans. They prefer instead to criticize those who are putting themselves in harm's way to keep our nation free. They seem to think they are on higher ground because they lockstep to arrogant left wing elitist phrases like "moral authority."

"Moral authority" is just a politically-charged phrase, words that symbolize an attitude or opinion held by a few "intellectual" elitists, UN lovers, and their fawning fellow travelers.

In contrast, deliberately crashing airplanes into buildings filled with thousands of innocent men, women, and children, and slashing throats and burning people alive are REAL!

The Islamo Fascist terrorists are sworn to kill Americans everywhere, and to thrust the world back into the dark ages.

Where's THEIR "moral authority"? What right do THEY have to torture and kill in the name of their god or prophet, or the innocent virgins apparently anxiously waiting for these murderous souls to arrive in their grossly distorted notion of heaven?

Waterboarding is NOT torture! Terrorists walk away with no bruises, no blood spilt, no broken bones or teeth, not even limping or feeling pain. Real torture is something that is done for punishment or for the pleasure of the torturer. Ask any of our prisoners of war, they can tell you what real torture is.

And even if it was torture, the grossest torture, it's much more moral if one murdering terrorist is tortured and thus reveals information that saves even one innocent life.

Our President would be acting IMMORALLY if he did not uphold his sworn duty to protect the American people from international enemies regardless of political pressure from the extreme left.

If it wasn't for the brave Americans who are willing to stand up to the terrorists, the muddled elitists too would be dead or forever stilled from uttering or writing another word of "moral" protest.

We must FIGHT for our freedoms! The alternative is death, or a living hell.

President Bush and those who work under him kept us safe from terrorism in our homeland for seven years.

Now THAT'S moral authority...

Posted by: Deserting one's post in a time of war. | February 17, 2008 9:40 AM | Report abuse

Oh yeah, and while we're talking about the erosion of our freedoms under these tinhorn fascists, a story from the NYT:

Error Gave FBI Unauthorized Access to E-Mail
By Eric Lichtblau
The New York Times

Sunday 17 February 2008

Washington - A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network - perhaps hundreds of accounts or more - instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

F.B.I. officials blamed an "apparent miscommunication" with the unnamed Internet provider, which mistakenly turned over all the e-mail from a small e-mail domain for which it served as host. The records were ultimately destroyed, officials said.

Posted by: braultrl | February 17, 2008 1:28 PM | Report abuse

Wow, if it's so easy to obfuscate the law on such a simple matter, imagine what they could get away with in a secret OLC memo!

Posted by: Singing Senator | February 17, 2008 1:44 PM | Report abuse

It a Conspiracy of Dunces!

Posted by: Ceci | February 17, 2008 1:57 PM | Report abuse

In an exchange with his GOP counterparts on Friday, Majority Leader Steny Hoyer implied that FISA was not going to expire at all. Instead, he said, a year-long extension from last August would keep it current. Perhaps Mr. Pershing could check into this. (The statement was made on the House floor and carried by C-Span).

Posted by: Mt Peaks | February 17, 2008 2:10 PM | Report abuse

@Mt Peaks.

Not only did Steny Hoyer say it, but it is obvious from the plain text of the statute that the FISA spying under PAA does not expire for a year.


`Sec. 105B. (a) 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.

Posted by: Andrei S | February 17, 2008 2:16 PM | Report abuse

"Again debating torture is like debating the nutritional value of cannibalism." Both are wrong and We as a supposedly advanced society with moral values should know this. My mother would say, " just because someone else is doing it, does not mean, that it is the right thing to do!" Any means of torture is wrong! I will not have my intelligence pulled down by the lack of intelligent of the men and women in the CIA, period!

9/11 happened on Bush's watch, and just because we haven't been attack since then, is a negative argument, you can not prove a positive with a negative. In other words just because we haven't been attacked since 9/11 does not mean we are safe!

A little more information for the dolt "Deserting one's post in a time of war above" The FISA laws are still in effect, these laws are the ones that Bush circumvented before 9/11. and now is trying to say that they were hampering Agents from doing their job. Yet when asked if any of the agents were turned down for a warrant, the answer was not one! So exactly how was FISA hampering the collection of information? FISA was in place after Nixon was caught spying on the Democrats. I believe this was exactly what Bush was caught doing and spying on American Citizens too. No President is above the law not even President Bush.. check your facts boy!

Posted by: nallcando | February 17, 2008 2:20 PM | Report abuse

The other fisa debate is serious and infuriating, but THIS fisa debate is hilarious. It would be even funnier if these clowns didn't think they were 'the leaders of the free world'.
Still, I think this post highlights the sometimes slapstick shenanigans that occur as laws on paper get transposed into real life, particuarily when the various wonks have such conflicting interpretations.
Thanks, Mr. Pershing for finding and sharing the rubber-chicken-lining to this otherwise dark cloud over the Bill of Rights.

Posted by: Patrick Huss | February 18, 2008 9:43 AM | Report abuse

Good Grief! A story about precision in meaning and it includes an error that suggests ignorance of one of the most obvious grammatical lessons in the English language:

"There is now, finally, agreement between all parties concerned that the law's extension expired at 12 a.m. Sunday . . . "

Did you, perhaps, mean "among"?

Or did you mean "both parties"?

Posted by: 33rdSt | February 18, 2008 12:20 PM | Report abuse

At this point I'm more concerned about the long-term threat posed to our liberties by the neocons than about any threat to public safety on the part of terrorists. Hijackings and suicide bombings are the weapons of the weak. If Bush gave a damn about our security he wouldn't initially have opposed allowing airline pilots to fly armed, and wouldn't have made it as inconvenient as possible for them when the law was passed. The FISA court is a complete sham, yet still apparently not sham enough for this president.

Posted by: Anonymous | February 18, 2008 3:48 PM | Report abuse

RE: Deserting one's post in a time of war

If Bush was morally right and wants to protect America, why did he abandon the attack on the terrorists who actually attacked America. Why did Bush pursue his personal goal of revenge against Saddam Hussein at the expense of American lives and treasure? Why isn't justice for those killed on 9/11 rendered?

People like you are so willing to throw the constitution out the window as soon as it gets a little hard to live up to its values and restrictions. You and people like you are the real threat to America.

Posted by: William Lucas | February 18, 2008 5:46 PM | Report abuse

Got a evil-doer in emailing his malicious thoughts ?
Just ask a FISA Judge for the WARRANT...

His thought are now a plan?
Make a bust

Is his finger on the "button" ?
Special Agent pull the trigger... now was that so hard.

All without altering the Constitution or giving retroactive immunity... before the truth has be told...

Posted by: bensonrt | February 18, 2008 7:08 PM | Report abuse


Posted by: ISHMAel back | February 19, 2008 6:35 AM | Report abuse

Right on, William Lucas. We have 100 times better chance of being hit by lightning than being hurt by a terrorist. I'll take my chances and keep all of my rights and liberties.

Posted by: Agree | February 19, 2008 2:49 PM | Report abuse

I had a pamplet giver to me in 1971 in whitch they (REPUBLIKENS?)had a new Constatution compleatly opsit the origenal.I lost it several years ago but ti is becoming to pass.

Posted by: Bill E.Bob | February 19, 2008 6:04 PM | Report abuse

Billy bob, you are a idiot. There is only one Constution, and the dems tromp on it every day. Wake up and smell the stinch coming out of the Chairman of the Select Committee On Intelligence. Did you notice who Nancy put in that job? Reyes.What does that tell you?

Posted by: elmerck | February 20, 2008 12:24 PM | Report abuse

@elmerck "What does that tell you?"

That someone needs to learn how to spell.

Posted by: Patrick Huss | February 20, 2008 1:34 PM | Report abuse

The US of A "either did or did not become naked in the face of terrorist aggression."

It is pretty indisputable that the USA did NOT become naked in the face of terrorist aggression. Anyone who thinks that there are NO protections against terrorists is a lying sumbish.

It would the reporting was more reality based and the GOP talking points were exposed and ridiculed every time they were printed or posted.

Have you flown commercial recently? TSA searches your bag, tosses the gels and liquids and scans your shoes. If you're especially lucky you get the "airport massage". Naked in the face of terrorist aggression? I don't think we are quite there yet, but perhaps soon under the Bush GWOT.

Posted by: Anonymous | February 22, 2008 11:00 AM | Report abuse

Remember Ben Franklin's warning about trading freedom for security one gets neither in the end.

Posted by: James Ketola | February 24, 2008 8:19 PM | Report abuse


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