Waiting on FISA Could be Devastating (Rep. Michael McCaul and Adm. Bobby R. Inman)

On February 12th, the United States Senate passed a broad, bipartisan bill that would close a loophole in our nation’s surveillance laws, while also adding critical liability protections for third parties who helped us defend our country. The Protect America Act, S. 1927, which was signed into law in August of 2007, closed the unacceptable gaps that had arisen in our intelligence gathering capabilities because of the application of the Foreign Intelligence Surveillance Act, or FISA, to foreign persons residing in foreign countries. These persons were never intended to be covered by FISA. Unfortunately, on February 14th, House Democratic leaders left Washington for a 12-day break after failing to pass the Senate legislation; also leaving the Protect America Act to expire on Saturday.

FISA was written and passed during the Cold War era, and was initially established to provide a process for obtaining a court order to conduct foreign intelligence surveillance within the United States. However, due to rapid changes in telecommunications technology, FISA frequently required government officials to obtain a court order to gather information on suspected terrorists and various other foreign intelligence targets located overseas, and communicating with others overseas, but sometimes communicating over networks which run through the US.

To apply FISA to monitoring foreign communications of suspected terrorists operating overseas, such as Osama Bin Laden and other key al-Qaeda leaders, turns the original intent of FISA on its head. Contrary to some of the rhetoric coming from Democrats, it is the members of Al-Qaeda, not American citizens that are the target of these intelligence gathering activities.

In the War on Terror the most important weapon is intelligence and our first line of defense is reliable intelligence. We are currently using every source of information that we can legally get our hands on to help keep this country safe and the majority of the American people support this policy. They have every right to expect we will continue to use every tool we can to protect them.

That being said, we have also installed important safeguards to protect the civil liberties afforded to us under the Constitution while we protect our homeland. The Senate passed bill would modernize FISA and do the right thing for those companies that responded to their country’s call for assistance in its hour of need. Companies should not be subjected to large legal costs for complying with a government request for help. If there is a viable legal challenge, it should be focused on whether the government action was legal, not that of the companies. To require that companies challenge the accuracy of the government’s position will irreparably damage National Security. The Senate passed bill is a strong bill; it passed by an overwhelmingly bipartisan margin and would protect our homeland and the civil liberties we, as Americans, cherish.

We have it within our ability to replace the expired Protect America Act by passing strong, bipartisan FISA modernization legislation that can be signed into law, and we need to act. The Intelligence Community cannot function effectively without the Senate’s comprehensive bill to provide them long-term certainty in their efforts to protect the nation.

The consequences of inaction in the House and the failure to send a bill to the President are real. To begin new terrorist surveillance without needless and dangerous delays is now impossible for U.S. intelligence officials. If a previously unknown group were to attack or kidnap American soldiers tomorrow, U.S. forces would have to wait – again – for the lawyers to get permission before a search could begin.

As recently reported in the The New York Post, U.S. forces in Iraq had to wait 10 hours last May before they could begin searching for three American soldiers taken hostage by al Qaeda because lawyers here in the United States were hammering out the proper documents to get emergency permission for wiretaps. One of our soldiers was found dead, the two others remain missing. This heartbreaking story could have been avoided.

Now our intelligence officials don’t have all the tools they need to protect us while Al Qaeda and other terrorist groups still plot against the United States and our allies. These laws didn’t safeguard America in 2001, and by not putting them back into effect now, we are putting Americans at undue risk once again.

We cannot wait to stop shielding terrorists overseas, and continue working
to prevent future attacks on Americans.

We cannot wait to give our intelligence officials all the tools they need to keep America safe and close this loophole.

We cannot wait to protect third parties that cooperate with the government to protect American lives from frivolous lawsuits.

We cannot wait to pass and sign into law the Senate legislation which protects both our civil liberties and our homeland.

As the families of the three soldiers abducted in May by al Qaeda can attest, waiting can be devastating.