- The Washington Times - Thursday, February 28, 2008


At exactly 6:09 p.m. on Feb. 14, the Democratic leaders of the House handed al Qaeda a Valentine’s Day gift. Thanks to their decision to recess for Presidents Week without passing legislation to update the law that governs the surveillance of terrorists overseas, jihadists are once again free to plot without much fear of having their conversations intercepted by U.S. intelligence officials.

The House’s inaction is all the more irresponsible because the Senate overwhelmingly passed a bipartisan bill recently that modernizes the Foreign Intelligence Surveillance Act (FISA) and closes terrorist loopholes that are big enough to drive a truck with explosives through.

It also provides liability protections for the telecommunications companies that have played a key role in helping the government defend our nation since September 11, 2001. There’s no dispute that the government and private sector must work together in rooting out terrorist threats, but if we allow these companies to be exposed to multimillion-dollar class-action lawsuits, they’ll have every reason to stop cooperating with our intelligence initiatives.

On Feb. 14 we had introduced the exact Senate legislation, but House leaders refused to bring our bill to the floor because they knew it would pass with bipartisan support. These political games have been played in the House since last August, when the Democratic leadership chose to wait for the last day before a monthlong recess to fix the law — and then brought a bill to the floor that it opposed and told its members to vote against. This month, with the clock again ticking, Congress closed shop for another vacation, but this time the law expired — an egregious act that threatens our safety and security.

The decision to strip intelligence officials of one of their key tools in the War on Terrorism has left us with no other option than to take the extraordinary step of organizing a discharge petition, which would require a vote on our bill once a majority of the House signs onto the effort.

We have no doubt many Republicans will add their names to the discharge petition, but with Democrats in the majority, the math is simple — they will need to join us if we are to succeed.

Consider what’s at stake: Half of all the information we obtain on future attacks against our nation comes from electronic surveillance, according to National Intelligence Director Mike McConnell, who warned that failure to pass the Senate bill will degrade all intercepts by two-thirds. We can’t expect intelligence officials to connect the dots when they have one arm tied behind their back collecting them.

Or as Mr. McConnell said, “More than likely we would miss the very information we need to prevent some horrendous act from taking place in the United States.”

Our legislation gives intelligence officials the speed and agility they need (and have had since right after September 11) to quickly monitor foreign-to-foreign communications of terrorists without having to first obtain a court order. But it also protects civil liberties by empowering the FISA Court to review the procedures used to collect this information. And it still requires the government to get a warrant to wiretap any American.

Let us be clear: This surveillance involves only suspected terrorists living overseas whose phone calls are routed through fiber-optic cables in the United States. Some complain about infringing on civil liberties, but whose liberties are they really talking about if the targets are outside the United States and the individuals are under federal surveillance for terrorist activities?

We treasure our civil liberties, but we also value the lives of the American people — and we recognize that stopping new attacks sometimes requires gathering intelligence quickly.

Unfortunately, intelligence officials are now forced to operate under laws written more than three decades ago — in an era before cell phones and PDAs. Instead of tracking new terrorist cases, they now waste critical hours fighting through red tape to file court papers trying to prove probable cause for a wiretap — a difficult task to do quickly when dealing with bits and pieces of information. And in an age of disposable cell phones and satellite communications, the terrorists will probably change their phone numbers several times before the court authorizes a wiretap.

It is likely we will see a return to the massive backlog of requests for surveillance like last summer, when intelligence officials had to essentially wait on line to get approval to eavesdrop on terrorists in Iraq, Pakistan or Afghanistan that were plotting deadly new attacks against innocent Americans.

Make no mistake — American is more vulnerable to attack today than it was just two weeks ago. In the Senate, Democrats and Republicans worked with the administration to pass a bipartisan bill. The question is, will the House stop playing politics and do the right thing for America?

Vito Fossella and Peter King are Republican members of the U.S. House of Representatives from New York.

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