Fear and False Claims

Defense of Democracies TV Ad: "Midnight"
Narrator: Midnight. February 16th. The law that lets intelligence agencies intercept al-Qaeda communications expires.

Senate Democrats and Republicans vote overwhelmingly to extend terrorist surveillance.

But the House refuses to vote and instead goes on vacation.

So new surveillance against terrorists is crippled.

Tell the House of Representatives to do its job and pass the Senate's terror surveillance bill… to keep us all safe. Osama bin Calling ...

Cue the scary music, black background and misleading statement:

Narrator: Midnight. February 16. The law that lets intelligence agencies intercept al-Qaeda communications expires.
This is simply not true. First, if government eavesdroppers want to listen in on communications between two suspected terrorists who are outside the U.S., they can. That would likely include a lot of al-Qaeda-related chats. No warrant is necessary as long as the communication isn't intercepted over a wire in the U.S.

Second, even if one of the parties targeted for tapping is in the U.S., the government still can rely on the granddaddy of laws that deal with wiretapping as a foreign sleuthing tool, the 1978 Foreign Intelligence Surveillance Act. Under FISA, intelligence-gatherers must apply to a special court for a warrant to tap the communications of a person in the U.S. The process can be cumbersome, although officials have said that court approval sometimes takes only minutes. And if there's an emergency and the government has strong evidence, the wiretap can proceed before an order is sought; authorities have up to 72 hours to get their application to the FISA court, which seldom swats the government down. Of the 2,181 applications made to the FISA court for authority to conduct electronic surveillance or physical searches in 2006, just one was denied, and only in part, according to the Justice Department's annual report on the statute.

What the ad's narrator really means is that a law updating and expanding FISA to make the government's work easier, which was passed last August, has expired. The Protect America Act was given a life of only six months because lawmakers wanted to put something in place while continuing to debate its civil liberties and national security implications before deciding whether to make it permanent. That's the law that vaporized on Feb. 16, with disagreements between the House and Senate still unresolved.

The Protect America Act, among other things, expanded the range of situations in which the government could operate without a FISA warrant. Controversy arose because the wording of the law could have allowed the government to wiretap the conversations and e-mails of Americans without a court order when targeting a foreigner abroad.