Foreign Intelligence Surveillance Act
By Joel Himelfarb
With American soldiers fighting deadly terrorist enemies in Iraq and Afghanistan, do we want to amend the Foreign Intelligence Surveillance Act (FISA) to introduce new judicial and bureaucratic obstacles to rescuing our troops if they are captured on the battlefield? And, with the American homeland in the crosshairs of international Jihadists, why are House Democrats and the ACLU so determined to make life miserable for telephone companies who have acted patriotically by helping our intelligence agencies monitor people who may be targeting this country?
On Wednesday, the House is scheduled to debate legislation called the RESTORE Act – that will in all likelihood require the government to get judicial permission before wiretapping terrorist communications that could aid the search for captured American troops. It could also be a potential windfall for trial lawyers hoping for a big payday by suing telephone companies for cooperating with the National Security Agency’s warrantless surveillance program.
Judiciary Committee Chairman John Conyers of Michigan and Intelligence Committee Chairman Silvestre Reyes of Texas (with the strong support of House speaker Nancy Pelosi) are pushing the RESTORE legislation, which would roll back the six-month expansion of wiretapping authority approved in August by Congress. Leading House Democrats are actually boasting about the fact that RESTORE does not include an essential provision sought by Director of National Intelligence Mike McConnell: He wants to grant retroactive immunity to U.S. telecommunications companies that cooperated with government efforts to conduct warrantless surveillance of terrorists after September 11. (There are approximately 40 lawsuits pending against telecommunications firms accused of violating the law.)
McConnell, who headed the National Security Agency during the Clinton Administration, is anything but a partisan gunslinger. Yet his insistence on retroactive immunity and his refusal to yield to House Democrats’ demands for new restrictions on intelligence operations have made him a hate figure a la Karl Rove for the left-wing bloggers.
Clearly, the House Democrat leadership and the ACLU want to make an example of telecommunications firms by punishing them for cooperating with U.S. intelligence efforts to protect this country. Here’s the way Rep. Jerrold Nadler, a New York Democrat and member of the House Judiciary Committee, explained the panel’s 21-14 vote to reject an amendment giving retroactive immunity to telecommunications firms: “Let the courts decide whether these companies, or some of them, were acting patriotically with nobility and legally, or if they were breaking the law.”
Here’s what Nadler is really saying: “We Democrats don’t give a damn if these companies get mired in time-consuming, expensive litigation that costs them resources and threatens the jobs of their employees. (You know, the “little people” that politicians like Nadler claim to ooze compassion for.) And we’re willing to put them through the legal wringer for the ‘crime’ of helping the National Security Agency monitor al Qaeda and Iraqi insurgents who want to murder us.”
Indeed, while McConnell is trying to end these outrageous lawsuits, the Democrat leadership wants to go in precisely the opposite direction. House Energy and Commerce Committee Chairman John Dingell (D-Mich.), along with Reps. Ed Markey (D-Mass.) and Bart Stupak (D-Mich.) have launched their own investigations of whether companies like AT&T, Verizon and Qwest illegally disclosed customer records by complying with intelligence-agency requests for data. In other words, these lawmakers are prepared to subject these companies to possible litigation precisely because they made good-faith efforts to help prevent terrorist attacks against the United States.
These politicians are able to get away with this in part because the telecommunications firms are not mounting any kind of public campaign to defend themselves. For one thing, they don’t want to further anger powerful House Democrat leaders like Conyers, Pelosi and Dingell, who have the ability to do tremendous damage to their businesses. And advocates of these surveillance programs are handicapped by the fact that anytime they attempt to explain the successes of such operations, they run the risk of divulging classified information.
As bad as telecom lawsuits are, they only scratch the surface of what is wrong with this bill. One story that has gone largely unreported is that of three soldiers of 10th Mountain Division in Fort Drum, N.Y., who were ambushed by al Qaeda south of Baghdad on May 12. One was found dead 11 days later. The other two, whose photo identification cards have been posted on an insurgent Web site, are still missing. On May 13 and 14, intelligence officials learned about intelligence communications they believed might be related to the ambush.
Then, on May 15, nine hours elapsed while intelligence officials discussed the need to obtain a FISA order to monitor these communications and tracked down Attorney General Alberto Gonzales to authorize the wiretap. This is the kind of foolishness House Democrats are attempting to preserve in FISA – a nine-hour delay in searching for American troops captured on the battlefield while lawyers and bureaucrats try to get a warrant to wiretap a suspected terrorist.
Reyes, the House Intelligence Committee chairman, attributes the delay to bureaucratic bungling, not FISA. His argument is false and intellectually dishonest. Until this year, it was perfectly legal to monitor terrorists in Iraq by placing a wiretap inside the United States. But in a series of rulings issued between January and May, the special court overseeing FISA ruled among other things that the government would have to get a warrant every time it wanted to obtain information from a wire on U.S. soil.
In short, government officials on May 15 were making absolutely certain that they were complying with the law – even if that delayed search efforts for the missing American soldiers. Mike McConnell has been tirelessly working to enact into law a permanent change in this situation. But if Reyes, Conyers and Pelosi get their way, we should expect to see outrages like the 10th Mountain Division search delay repeated again and again. Source: Family Security Matters