This op-ed originally appeared in the Washington Times on March 3, 2008
There can no longer be any doubt about whether the lapse of the Protect America Act has harmed America’s intelligence-gathering capabilities. Attorney General Michael Mukasey and the apolitical Director of National Intelligence Mike McConnell confirmed this reality in a Feb. 22 letter to House Intelligence Committee Chairman Silvestre Reyes.
Claiming that renewal of the Protect America Act was “critical to our national security,” the letter also stressed that with the lapse “the nation is now more vulnerable to terrorist attacks and other foreign threats.” Last summer Congress passed the act into law. The purpose of the Protect America Act was to modernize the Foreign Intelligence Surveillance Act of 1978 (FISA) and make it more workable, particularly in light of the reality that our country is on a war footing.
The FISA bill was originally passed during the Carter administration and one of its primary purposes was to require federal court oversight of government surveillance of people residing in the United States. The bill created a special court — the Foreign Intelligence Surveillance Court — to oversee implementation of the law and the issuance of surveillance subpoenas.
While this approach proved workable initially, it became more problematic as time wore on. In the last few years the FISA court ruled that the court must be involved in electronic monitoring decisions, even in cases in which the people subject to surveillance were outside the United States.
Fortunately, the Protect America Act overturned this ruling and restored FISA’s original limits to apply to domestic surveillance. Additionally, the Protect America Act specifically authorized American telecommunications firms to assist our nation’s intelligence-gathering entities.
After initially claiming that the bill needed more safeguards for surveillance suspects — including the likes of convicted shoe bomber Richard Reid and September 11 mastermind Khalid Sheikh Mohammed to prevent their calls and activities from being monitored and abused by the federal government — Democratic critics of international wiretapping and electronic surveillance have backed down. Now Democrats claim they are worried about the immunity provisions that will end the cascade of lawsuits against telecommunication firms like AT&T and Verizon.
Unfortunately, the new effort the Democrats are pursuing doesn’t provide telecom firms with any greater political cover, especially since it appears to be a result of a misplaced political parochialism. Press reports indicate that the 66 trial lawyers suing the telecommunications companies have given a combined $1.5 million in campaign contributions to congressional Democrats. And it’s those very same lawyers who want the Protect America Act to lapse permanently — just so their cases can continue.
While this might be good for the trial bar, it is reckless when it comes to our nation’s security. The September 11 attacks took six years to engineer, and while we’ve managed to disrupt a few of the subsequent plans, there is plenty of evidence that those who intend to harm us are trying as hard as ever to do so. We must remain vigilant.
Unfortunately, because the act as originally drafted contained a sunset provision, it has now expired. And even though House Speaker Nancy Pelosi and other Democrats dismiss or deny any risks altogether from having allowed the Protect America Act to expire, this view is not simply wrongheaded. It is dangerous.
The new rules were working and provided the right balance between civil liberties and national security. It is vital that the president is authorized to surveil foreigners without going to the Foreign Intelligence Surveillance Court for permission. Additionally, the existing bill’s safeguards required the Justice Department to develop and submit to the FISA court a set of procedures the president will use in making determinations of who is a foreigner.
Most important of all, it is simply a 21st-century reality that the director of national intelligence and the attorney general must be able to work with private firms in order to exploit the latest technologies involving surveillance of foreign intelligence targets. But, if the private firms think they’ll get sued, they have little to no incentive to do so.
Messrs. McConnell and Mukasey have made it very clear that the lapse of this law is having clear and present dangerous effects. Congress is now back, and while we can’t undue the loss of valuable intelligence we have suffered, we can stop the bleeding.
Horace Cooper is a senior fellow with the American Civil Rights Union.