Mr. Reyes’s FISA falsehoods

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Deception and political skullduggery are hardly new developments in the nation’s capitol, but the House Democratic leadership has reached new heights of intellectual dishonesty in its spin campaign for legislation to change the Foreign Intelligence Surveillance Act (FISA), which reaches the House floor today. House Judiciary Committee Chairman John Conyers and House Intelligence Committee Chairman Silvestre Reyes (acting with the strong support of House Speaker Nancy Pelosi) are pushing legislation called the RESTORE Act, a major overhaul of FISA — the major U.S. law governing electronic surveillance for intelligence and counterterrorism purposes. Two months ago, Democratic leaders were embarrassed by the defection of many members of the Blue Dog Coalition, a group of relatively moderate Democrats, who joined with Republicans in passing a temporary FISA fix that would ensure that the National Security Agency and other intelligence agencies could monitor suspected terrorist communications overseas without having to obtain a warrant.

So, Democratic Party leaders, still seething over the Blue Dog defections in August, are pushing the RESTORE bill, scheduled for debate today. The Democrats claim the measure is a “compromise” that will ensure that U.S. intelligence agents can spy on terrorists and the like while preventing dark forces in the Bush administration from being able to spy on Americans whenever the spirit moves them. The most harmful features of the legislation include provisions that would require a court order to gather communications when a foreign terrorist tries to contact someone in the United States. From 1978, when FISA was first enacted, until this year, no such requirement existed.

The bill also omits any retrospective liability provision that would prevent lawsuits against telephone companies like AT&T; and Verizon, which assisted the government in monitoring suspected terrorist telephone calls following the September 11 attacks. These companies deserve thanks, not harassment in the courts. By failing to include this provision, the Democrats have reneged on a promise they made to National Intelligence Director Mike McConnell to address the issue.

In the past week, Mr. Reyes and his colleagues have become deeply worried about a political problem with their bill: that it would require a court order to monitor communications of the very terrorists that American GIs are fighting on the battlefields of Iraq and Afghanistan. The case of the three soldiers from the 10th Mountain Division based in Ft. Drum, N.Y., who were ambushed by al Qaeda operatives in May, has become a clear and present danger to the RESTORE Act.

Briefly, here are the facts (reported on this editorial page weeks ago and more recently picked up by other news organizations): Three U.S. soldiers were kidnapped May 12 south of Baghdad in an al Qaeda attack that killed four of their colleagues. As U.S. soldiers searched for the men May 13 and May 14, intelligence officials learned about jihadist communications that were possibly related to the ambush. On May 15, more than nine hours elapsed while U.S. intelligence officials discussed the need to obtain a FISA court order to monitor these communications and obtained authorization to do so.

Mr. Reyes and the left-wing blogosphere are hyping a memo released Monday by the Democratic staff of the Intelligence Committee which purports to show that the delays were caused by bureaucratic bungling, not FISA. Their argument is disingenuous and misleading in the extreme. Until this year, it was legal under FISA to monitor terrorists in Iraq by placing a wiretap in the United States. But in a series of rulings between January and May, the special court overseeing FISA called this into question.

On May 15, U.S. intelligence officials — fully aware that the legal ground justifying the ability to conduct warrantless searches was shifting beneath their feet — did what they had to do to prevent the likes of Silvestre Reyes and John Conyers from hauling them before their committees for allegedly “violating the rule of law”: They jumped through all manner of bureaucratic hoops before eavesdropping on the terrorists who kidnapped the three American troops (one of whom was found dead, while the other two remain missing.)

The RESTORE Act would effectively enshrine this kind of idiocy that endangers our troops as the law of the land. For the Democratic leadership, pandering to the left-wing blogosphere and the ACLU is apparently a higher priority than the safety of American GIs fighting al Qaeda.

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