McCain Has a Winning Issue with FISA
I bet you didn’t realize that right now the federal government has it hands tied and can’t use all the tools available to follow terrorist chatter. Intelligence agencies are being stymied in monitoring foreign communications that pass through the U.S. That’s because the House of Representatives led by Speaker Nancy Pelosi refused to vote on a bipartisan Senate bill that would have made modernized FISA. If brought to the floor of the House the bill would pass in a bipartisan manner with the help of 21 Blue Dog Democrats. Instead of dealing with a national security Pelosi let the House go on vacation.
In Today’s Wall Street Journal Senator Kit Bond (R-MO) and Reps. Pete Hoekstra (R-MI) and Lamar Smith (R-TX) explain why FISA needs to be fixed for the 21st Centry. Here’s a portion:
Intercepting terrorist communications requires the cooperation of our telecommunications companies. They’re already being sued for having cooperated with the government after 9/11. So without explicit protection for future actions (and civil liability protection for the help they provided in the past), those companies critical to collecting actionable intelligence could be sidelined in the fight.
It has already happened, briefly. “[W]e have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act,” Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey wrote in a letter dated Feb. 22 to Mr. Reyes, the chairman of the House Intelligence Committee.
- The old FISA law does not adequately protect the U.S., which is why it was revised by the Protect America Act last summer. The problem is that, although it has a few work-around-provisions, such as allowing intelligence agencies to conduct surveillance for up to 72 hours without a warrant, FISA ultimately requires those agencies to jump through too many legal hurdles. Those include the Fourth Amendment’s “probable cause” requirements, protections never intended for suspected terrorists’ communications that are routed through the U.S.
Senate Minority Leader Mitch McConnell writes in Investors Business Daily about the realities our military and intelligence agencies now face:
The House’s lack of action meant that at midnight on Feb. 16, the nation’s terrorist surveillance law expired. At that moment, intelligence officials who spend their days listening in on phone calls between terrorists overseas were legally barred from following new leads without first following outdated and cumbersome warrant procedures — even if neither caller is calling from within the U.S.
The consequences of inaction are real. Today, if someone in a previously unknown terror cell calls an eager new recruit in London, our agents will have to hang up the phone, apply for a warrant and hope for the best.
If a Marine in Iraq captures a terrorist from a previously unidentified terror group, our agents will not be free to call the phone numbers in his laptop right away.
If calls placed to these numbers are routed through U.S. phone lines, our agents will have to apply for a warrant, even though the people on the other end are overseas and the terrorist with the laptop is not an American.
Hard to believe? Sadly, this is the world we live in now that Congress has failed to act.
Here’s a real-world example of hurdles needed for dealing with 1978’s FISA and their consequences [via Stubborn Facts]:
In the early hours of May 12, seven U.S. soldiers – including Spc. Jimenez – were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the “Triangle of Death.”
Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.
Four of the soldiers were killed on the spot and three others were taken hostage.
A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers – obeying strict U.S. laws about surveillance – cobbled together the legal grounds for wiretapping the suspected kidnappers.
Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.
For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the “probable cause” necessary for the attorney general to grant such “emergency” permission.
Finally, approval was granted and, at 7:38 that night, surveillance began.
Fox News also reported on it detailing the process federal officials went through to get permission to monitor communications.
I’m not claiming Spl. Jimenez would be alive today had FISA already been modernized. What I do claim is U.S. troops in Iraq shouldn’t be sitting around waiting for lawyers to deal with “probable cause.”
The stickler in the bill sitting in the House is a provision that would give telecom companies immunity from lawsuits that resulted from their cooperation with the federal government after Sep. 11. Many Democrats oppose that.
The Electronic Freedom Foundation has been on the front line in legal battles over terrorist surveillance. They also oppose the Senate bill that includes the telecom immunity. Having a strong legal bent they don’t realize lawsuits impose costs. In a “Myth/Fact” post Kurt Opsahl writes,
MYTH: “class-action lawsuits that would — that, one, already are costing them lots of money to deal with…”
FACT: Since last August, there have been almost no litigation costs. The cases are at a stand-still. There certainly have been no litigation costs since the Protect America Act expired on February 16.
Anyone who has dealt with a lawyer knows they’re always on the clock. Whether it’s reading a letter that came in the mail, talking to the client on the phone, or writing up a legal brief. Even cases “at a stand-still” have limited activity that’s costing someone money.
EFF’s Hugh D’Andrade hopes for compromise from House Republicans. To him that means ditching the telecom immunity. I have another idea. How about sunsetting the new FISA modifications to 5-10 years? The military and intelligence agencies need better tools while the telecoms need certainty that they won’t be raked over the coals for helping the U.S. government fight the nation’s enemies.
I too share the concerns of people worried about an intrusive government listening in on American’s phone calls and reading their e-mails. With that I also want to make it as easy as possible for the military and intelligence agencies to gather as much information as possible about foreigner threats.
If good policy is good politics then Sen. McCain needs to jump on this issue harder and take it to Sens. Clinton and Obama. He did well in an appearance on Larry King Live. He needs to do more of that. Conservative critics will rally to him when he uses is national security strength politically well.
[photo via comin or goin]
That’s because the House of Representatives led by Speaker Nancy Pelosi refused to vote on a bipartisan Senate bill that would have made modernized FISA.
That’s just not true, Sean. A bill to extend the temporary provisions to FISA that allowed warrantless wiretapping passed both houses of Congress and was put before President Bush.
He vetoed it. If America is less safe – and nobody except White House propagandists thinks it is – it’s because of the actions of President Bush.
And McConnell’s remarks are simply wrong. FISA already allows for retroactive warrants. Nobody has to “put down the phone.”
telecoms need certainty that they won’t be raked over the coals for helping the U.S. government fight the nation’s enemies.
If they didn’t break the law, how can they be “raked over the coals”? If they did break the law, why shouldn’t they be held accountable in a court of law? And why is it so anathema to people like you, Sean, that it be a courtroom, not a legislature, that determines whether or not the law was broken? Don’t you think there’s a separation of powers issue here?