Lapses in FISA judgment

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Yesterday President Bush implored Congress — and, in particular, House Speaker Nancy Pelosi — to stop blocking passage of much-needed legislation to extend the Foreign Intelligence Surveillance Act (FISA) and grant retroactive liability protection to telecommunications companies that helped monitor jihadist communications after September 11. Mr. Bush emphasized that it would be dangerous and unfair to deny telecoms retroactive protection against lawsuits for their assistance to U.S. intelligence agencies. Government officials, he said, told these companies that "their assistance was legal and vital to national security."

Alluding to the nearly 40 lawsuits filed against telecommunications companies that have been pushed by groups like the ACLU and the Electronic Frontier Foundation, Mr. Bush noted that dragging these companies into court could do major damage to national security. If retroactive protection against lawsuits is denied, the president noted, trial lawyers who "see a financial gravy train" from filing suits against deep-pocketed telecoms would benefit, but Americans' public safety would be jeopardized. As the president noted, U.S. firms would face a wave of lawsuits revealing how the United States conducts surveillance against terrorists and that would "give al Qaeda and others a road map as to how to avoid surveillance." Without the cooperation of private companies "we cannot protect the country from terrorist attack," he said.

The dispute over FISA, the president said, is not "a partisan issue." In this instance, he is right. A strong case can be made that a majority of members of both Houses of Congress — both controlled by Democrats — agree with the Bush administration's position on FISA, and that only the malevolent behavior of the House Democratic leadership has prevented Congress from reforming FISA to ensure that patriotic corporate citizens of this country are not penalized for doing the right thing. Before Congress recessed several weeks ago, the Senate voted 68-29 for the Bush administration's proposal to renew FISA with retroactive liability protection.

In late January, 21 members of the Blue Dog Coalition of relatively moderate Democrats sent a letter to Mrs. Pelosi supporting the Senate bill. So, Mrs. Pelosi, realizing that she would almost certainly lose, abruptly recessed the House without considering the Senate bill. During the just-concluded recess, Mrs. Pelosi and Senate Majority Leader Harry Reid scheduled brief pro forma sessions of the House to prevent Mr. Bush from calling the House back into special session to consider FISA.

It is particularly disappointing to see that Mr. Rockefeller, who has generally played a constructive role on FISA and telecom liability, has taken to repeating Mrs. Pelosi's specious assertions that U.S. intelligence capabilities aren't being damaged by the lapse of FISA. The reality is that U.S. intelligence agencies have lost a considerable amount of their capability to monitor any new terrorist groups they discovered after Feb. 16, when the old FISA law expired.