Monday, June 23, 2008

The agreement on changes to the Foreign Intelligence Surveillance Act (FISA) announced Thursday by the White House and congressional Democrats is an important victory for U.S. national security. Americans owe a debt of gratitude to the Bush administration, in particular National Intelligence Director Mike McConnell, and to congressional Republicans, especially Sen. Kit Bond of Missouri, for fighting to ensure that the U.S. intelligence community will have the tools it needs to monitor foreign terrorist networks. The legislation passed the House on Thursday by a vote of 293 to 129, and is expected to pass the Senate this week.

The most important benefit of the agreement is that it grants retroactive liability protection to telecommunications companies who responded to the federal government’s request for emergency help after September 11. The companies did their patriotic duty: making sure that the U.S. intelligence agencies were able to monitor the telephone calls and faxes of known and suspected terrorists - at a time when there was good reason to worry about a second wave of attacks. However, for doing the right thing, the companies were hit with approximately 40 lawsuits pushed by the ACLU, the Electronic Frontier Foundation and trial-lawyer activists. These lawsuits exposed the telecoms to the possibility of paying billions in damages for helping the government conduct “illegal” warrantless surveillance. But two centuries of American case law demonstrate that the warrant requirement has never been absolute. To cite but one of many exceptions, the president has long been understood to have the “inherent authority” to conduct warrantless searches to obtain foreign intelligence information. This has been recognized by federal appeals courts and was acknowledged in 2002 by the Foreign Intelligence Surveillance Court of Review.

In this context, it would be difficult to imagine a more pernicious message to send to these companies - forcing them to choose between their fiduciary duty to stockholders on the one hand and acting lawfully to help protect their fellow citizens from terrorist attack on the other. The FISA agreement worked out last week means the telecoms won’t be put in such an impossible position. It sends an important message to the private sector: that corporations can assist their government’s efforts to prevent future attacks without fear of harassing lawsuits.

The legislation, which would sunset in 2012, also ends the foolish practice of requiring judicial (or formal attorney-general) authorization to monitor communications between terrorists overseas if their calls are routed through a switch located in the United States. On May 12, 2007, three U.S. soldiers from the 10th Mountain Division in Ft. Drum, N.Y. were ambushed and kidnapped by al Qaeda south of Baghdad. Over the next two days, intelligence officials learned of communications that might be related to the ambush. But on May 15, nine hours went by as U.S. intelligence and law enforcement officials tried to get a warrant to monitor the suspected abductors’ communications and tracked down Attorney General Alberto Gonzales to authorize a warrant. The U.S. military found the lifeless body of one of the kidnapped soldiers later that month, while the other two men remain missing. Under the compromise measure that cleared the House last week, a court order would no longer be required to monitor communications in which both parties are foreign terrorists located outside the United States.

If the House vote is any indication, political fallout from the legislation will unify Republicans and deeply divide the Democrats - not unlike the presidential primaries which just concluded. In the House, Republicans voted 188-1 in favor of the bill, while Democrats voted 128-105 against it. Left-wing blogs like Talking Points Memo and DailyKos are furious with members of the House Democratic leadership like House Speaker Nancy Pelosi, Majority Leader Steny Hoyer, Intelligence Committee Chairman Silvestre Reyes and members of the Blue Dog Coalition for supporting the bill.

Meanwhile, Barack Obama is triangulating on FISA. He has announced his support for the House-passed bill, but says he will try to strip retroactive immunity from the legislation when it reaches the Senate floor. Yet Mr. Obama is coming under pressure from, which is calling on him to fulfill a campaign promise to filibuster any bill including retroactive immunity for telecoms. Mr. Obama is about to discover the unhappy truth: No amount of politically prudent pandering will mollify the hard left. As for John McCain, he supports the deal reached last week. But his campaign has mishandled the issue, most recently in sending a surrogate to a technology conference where he contradicted Mr. McCain’s position on FISA. John McCain is right on this issue. But whether he is capable of articulating this is an open question.

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