Getting around FISA naysayers

OPINION:

When it comes to reforming the Foreign Intelligence Surveillance Act (FISA), Democrats are caught between the political desire to pander to their far-left political base and the security imperative of preventing future terrorist attacks. They continue to look and sound like slippery politicians.

The House Democratic leadership — in particular Judiciary Committee Chairman John Conyers and Intelligence Committee Chairman Silvestre Reyes (with the blessing of House Speaker Nancy Pelosi) — is pushing a “reform” bill that would roll back the temporary expansion of eavesdropping authority approved in August by Congress. The eavesdropping authority expires Feb. 1.

The Democrats’ measure does not include an essential provision sought by Director of National Intelligence Mike McConnell, who wants to grant retroactive immunity to U.S. telecommunications companies that cooperated with government efforts to conduct warrantless surveillance of terrorists following the September 11 attacks. The lawsuits against telecom companies could prove to be a financial windfall for a favored Democratic Party constituency: trial lawyers. Approximately 40 lawsuits are pending against telecommunications firms accused of violating the law.

Some prominent Democrats, including House Majority Leader Steny Hoyer and Senate Intelligence Committee Chairman Jay Rockefeller, clearly uncomfortable with carrying water for trial lawyers, have indicated that they’ll agree to retroactive immunity if the White House yields to their demands for more information about the terrorist surveillance program. And if the administration refuses — well, then the Democrats will punish telecom firms for previous good-faith cooperation with with government efforts to monitor jihadists plotting against this country by blocking permanent changes to FISA.

But the damage would go well beyond enabling frivolous lawsuits to go forward in order to shake down U.S. businesses. If the Democrats are ultimately successful in preventing FISA reform or limiting it to small, cosmetic changes, the big losers could be Americans serving in war zones like Afghanistan and Iraq — that’s right, the very soldiers Democrats tell us they are so concerned about.

Few cases better illustrate how harmful FISA was prior to the six-month fix Congress passed over the opposition of Pelosi and Co. in early August than the case of three soldiers from the Army’s 10th Mountain Division in Fort Drum, N.Y. They were ambushed May 12, apparently by al Qaeda, south of Baghdad. One of the soldiers was found dead on May 23; the other two, whose photo identification cards have been posted on an insurgent Web site, remain missing.

As coalition forces searched for the soldiers on May 13 and May 14, intelligence officials learned about insurgent communications that they believed to be related to the ambush. On May 14, the Foreign Intelligence Surveillance Court, which oversees FISA, issued an order permitting some of the suspected terrorist communications that they thought to be related to the ambush. The next day, government officials convened once again to discuss collecting additional intelligence. Over the next nine hours, intelligence officials, lawyers and others discussed the need to obtain a FISA order to monitor these communications. At one point, a lawyer for the Justice Department’s Office of Intelligence Policy and Review tried to reach Solicitor General Paul Clement, who was serving as acting attorney general in the absence of Attorney General Alberto Gonzales. But Mr. Clement had already left for the day. Approximately two hours later, Mr. Gonzales authorized the surveillance. Mr. McConnell argues that the nine-hour delay in authorizing a wiretap in an effort to find missing American soldiers is intolerable, and he is exactly right.

Unfortunately, however, Mr. Reyes and his colleagues in the Democratic leadership have argued that these problems are attributable to bureaucratic delays, and that no change in the law is necessary. Tell that to the soldiers’ families and the brave men and women still risking their lives.

The Democrats’ assertions are intellectually dishonest. Until this year, if the National Security Agency wanted to monitor a suspected terrorist phone call between two towns in Iraq, it was perfectly legal to place a wiretap in the United States. But in March of this year, a special court overseeing FISA challenged the government’s ability to collect data from wires in this country. Then, two months later, another judge ruled that the wording of the law required that the government get a warrant every time it wanted to obtain information from a wire on U.S. soil. That’s what the Bush administration is seeking to change.

In order to do so, the administration will need to do once again what it did back in August: go over the heads of the Democratic leadership and work with the Blue Dog Democrats on a serious effort to fix FISA.