Fix FISA now

When Congress returns to work next week, the first item on its national security agenda needs to be enacting into law permanent changes to the Foreign Intelligence Surveillance Act (FISA), the primary law governing the collection of foreign intelligence, which expires Feb. 1.

The key battleground is the Senate, which has two major issues it needs to resolve when it begins debate on the issue next week: The first is 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 after the September 11 attacks. But there are approximately 40 lawsuits pending against these firms, and the lawsuits could prove to be a financial windfall for a favored Democratic Party constituency: trial lawyers.

Although retroactive immunity is contained in the FISA overhaul legislation passed by the Senate Intelligence Committee headed by Sen. Jay Rockefeller, West Virginia Democrat, it was left out of a competing FISA bill passed by the Senate Judiciary Committee headed by Sen. Patrick Leahy, Vermont Democrat. Senate Majority Leader Harry Reid opposes retroactive immunity, but he is also under pressure from relatively pragmatic Democrats like Mr. Rockefeller who understand that it could prove politically suicidal for Democrats to stand against legal relief for telecoms — especially if doing so hinders the ability of U.S. intelligence agencies to prevent future attacks. So, Mr. Reid is expected to bring both bills to the Senate floor.

The second issue is a destructive amendment attached to the Senate Intelligence Committee bill by Sen. Ron Wyden, Oregon Democrat, which would require a warrant for any overseas surveillance conducted for intelligence purposes. The Wyden amendment “threatens to undermine overseas intelligence gathering,” Senate Minority Whip Jon Kyl, Arizona Republican, told The Washington Times. “If you’re going after a drug cartel in Colombia, you don’t have to get a warrant. If you’re targeting a group planning a terrorist attack, you have to get a warrant. How ironic: That’s putting things backwards.”

FISA, which was first enacted in 1978, created a special court to oversee intelligence collection. The law was amended after September 11 to tear down the wall between criminal and intelligence investigations which hindered the gathering of information on jihadist activities. The post-September 11 changes were working until early last year, when the special court overseeing the law ruled that if the government wanted to monitor a suspected terrorist phone call between Iraqi villages, it would have to get a warrant every time it wanted to obtain information from a transmission wire on U.S. soil. As a result, U.S. intelligence agencies lost roughly two-thirds of their ability to obtain communications intelligence about al Qaeda before Congress passed a six-month extension of the law in August. The Senate needs to jettison the Wyden amendment and pass the Intelligence Committee bill.