FISA Fight Continues

One week from today, the Foreign Intelligence Surveillance Act (FISA) will expire unless Congress passes a new version that President Bush is willing to sign. If it expires, our intelligence gatherers here and abroad will be rendered blind and deaf because the legality of their operations will be put in limbo.

As CIA Director Gen. Michael Hayden said, terrorists are in a Darwinian era: we’re only capturing the dumb ones. If we’re going to catch the smart ones -- and thwart their plans -- we need more and better intelligence. Why, then, are the Democrats insisting on hobbling intelligence gathering by insisting on a more restrictive FISA?

FISA -- which dates back to the Carter administration -- is a law that is supposed to govern how intelligence agencies collect data on foreign agents in the United States. Though the President has Constitutional authority to do this outside of the framework of FISA, President Bush chose last year to submit the National Security Agency’s terrorist surveillance program to FISA limitations when the existence of the highly classified program was leaked to and published by the New York Times.

Last May, the FISA court issued a secret decision that imposed new limitations on gathering foreign intelligence that caused a crisis for NSA, CIA and the other intelligence agencies. In one reported incident, the new restrictions caused a nine-hour delay in gathering intelligence essential to an ongoing combat mission to rescue three kidnapped American soldiers in Iraq.

As a result of the FISA court’s action, the Director of National Intelligence, Adm. Mike McConnell, came to the Senate Intelligence committee leaders -- Sens. Jay Rockefeller (D-WV) and Christopher Bond (R-Mo) -- in June and asked for urgent action to remedy the problem.
Congress procrastinated until the eve of the August recess when -- despite the outcries of the liberal media (the New York Times, again, and others) -- it passed a fix to the problem with a six-month sunset provision built in. Democrats were forced to accept the short-term extension because they wouldn’t agree to a provision that would give telecommunications companies immunity from civil lawsuits based on their good-faith cooperation with the government.

With the expiration date closing in, Senate Majority Leader Harry Reid (D-Nev.) finally began floor action on the FISA bill. But he and the other liberals are trying to wheedle another short-term extension without the telecom immunity the intelligence community wants and needs. Both McConnells -- Senate Minority Leader Mitch McConnell (R-Ky) and Director of National Intelligence Adm. Mike McConnell -- have rejected the idea. Reid, as of last night, seemed ready to play that game out all too long.

Reid's inability to get agreement among the Dems he supposedly leads frustrated the entire Senate last night. First, Reid threatened that FISA would be allowed to expire, trying desperately to get a short-term extension. When Minority Leader McConnell blocked the move and filed a cloture motion, Reid was forced to schedule the vote on cloture for Monday afternoon.
Earlier this week, Sen. Bond told me in an interview that, “Congress has had six months to act. To stall legislation needed to help our intelligence community prevent attacks and protect American lives is not only irresponsible, it’s dangerous.” He added, “Failure to act could leave our country deaf and dumb, handcuffing our intelligence operators who are fighting to protect American families in the war against Islamic extremism.”

The fate of the Senate bill may depend on the New York Times editorial page.
Reid usually defers to the Times’ judgment. In an August 3 press conference, as the Senate was about to pass the FISA revision, Reid was asked if he thought the Bush administration was stampeding Congress into acting too quickly, Reid literally pulled that day’s lead New York Times editorial on the subject (titled, “Stampeding Congress Again”) and displayed it to the television cameras saying, “Here’s my answer.” Yesterday’s Senate votes were conducted without that sort of guidance. If the New York Times comes out against the bill again this morning, Reid will probably follow its orders.

The House bill would be a disaster for intelligence agencies. It would -- for the first time in American history -- impose a requirement to obtain a FISA court warrant to intercept communications of persons reasonably believed to be overseas. And (in another blatantly unconstitutional provision) military intelligence gathering would be subjected to FISA court proceedings.

Think about that. Put yourself in the boots of a SEAL platoon leader trying to determine if you’re walking into an al-Queda ambush. You probably need -- right now, not ten hours from now -- intelligence about a bunch of guys sitting two kilometers over some hill in Afghanistan. If any of them may be in contact with anyone in the United States, you have to get a warrant from the FISA court to listen in on his cell phone.

It all boils down to this: the House bill will cause the deaths of Americans on the battlefield. When the Senate bill passes -- which is likely Monday afternoon -- the House will be left with less than a week to conference its bill with the Senate and agree to a version that the president will sign.

President Bush has indicated he will veto a bill that doesn’t include the telecom immunity provision. Other aspects of the House bill will also result in a veto. And if the law expires, much of our intelligence gathering -- essential to saving American lives, and not only in combat -- will stop.

Will the Democrats be so cavalier with American lives? Read the next few days of the New York Times editorials for the answer.
- Jed Babbin, Human Events Editor