Accuracy in Media

Few issues better illustrate the serial irresponsibility of the Democrat majority in Congress on national security issues than its handling of the renewal of the Foreign Intelligence Surveillance Act (FISA), the principal federal law governing the collection of intelligence through the interception of telephone calls, faxes, e-mails and other electronically sent messages.

On Tuesday, the Senate takes up legislation which would renew FISA. The most critical issue to be debated is whether American telecommunications companies should be punished financially for doing their patriotic duty after the September 11 terrorist attacks: cooperating with federal terrorist surveillance efforts against al Qaeda and other jihadists to reduce the likelihood of future attacks on the United States. Approximately 40 lawsuits have been filed against these companies with the support of the ACLU and left-wing blogs like DailyKos and Talking Points Memo.

If Congress refuses to extend FISA by Saturday, U.S. intelligence would lose the ability under FISA to electronically monitor new Jihadist targets discovered after that date. President Bush does have the option of authorizing surveillance on his own without congressional authorization, pursuant to Article II of the constitution. “There is nothing new or aggressive about relying on Article II authority in the context of foreign intelligence surveillance,” according to congressional staff analysis prepared for Rep. Christopher Bond, Missouri Republican and vice chairman of the Senate Intelligence Committee. The analysis, first reported by Jan. 21 by Bill Gertz of The Washington Times, notes that “warrantless surveillance for foreign intelligence collection has been an integral part of our nation’s intelligence gathering. During World War II, our warrantless surveillance of the German and Japanese militaries and the breaking of their codes preserved our democracy.”

But if Mr. Bush were to do so, it would almost certainly trigger an angry reaction from some elements in Congress and segments of the mainstream media along with plenty of new litigation from ACLU types – all of them asserting that the president is “violating the law.” Right now, Democrat Senators Chris Dodd of Connecticut and Russ Feingold of Wisconsin, working in tandem with Senate Judiciary Committee Chairman Patrick Leahy, Vermont Democrat, have been spearheading a filibuster against the Intelligence Committee bill because it contains retroactive telecom immunity.

Speaking to the Conservative Political Action Conference in Washington last week, President Bush and the likely 2008 GOP presidential nominee, Sen. John McCain, both emphasized that by catering to such obstructionism, congressional Democrats are endangering national security. As Mr. McCain noted: “It’s shameful and dangerous that Senate Democrats are blocking an extension of our surveillance powers that enable our intelligence and law enforcement to defend our country against radical Islamic extremists.” The two leading contenders for the Democrat nomination, Senators Hillary Rodham Clinton and Barack Obama, both oppose retroactive liability protection for telecoms.

The problem is every bit as serious as Bush and McCain say it is. From 1978 — when a Democrat-controlled Congress passed FISA and President Carter signed it into law – there was never any serious question that it is perfectly legally to monitor overseas telephone conversations for intelligence purposes without judicial approval. All of that changed early last year, when a series of rulings by the special court overseeing FISA made it necessary to get judicial approval to monitor such calls; when the U.S. intelligence community began complying with these rules, National Intelligence Director Mike McConnell reported, it soon found that it could not get court approval quickly enough in order to investigate all of the new terrorist targets it needed to monitor.

The FISA court’s decisions “had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or a fiber on U.S. soil, a task so time-consuming that a backlog developed,” Washington Post correspondents Joby Warrick and Walter Pincus reported. “We needed thousand of warrants, but the most we could get was hundreds,” a senior administration official said. The problem became especially big by the end of May, with the NSA officials saying that they were “losing capability” to monitor suspected terrorists.

Last summer, McConnell (who headed the National Security Agency under President Clinton) was indefatigable in lobbying Congress to pass legislation enabling NSA and other intelligence agencies to do their job. In August, the Senate voted 60-28, with 16 Democrats responding to McConnell’s plea, to allow the intelligence community to monitor these terrorist targets without court approval for six months. In the House, the Bush administration persuaded 41 Democrats, nearly all of them members of the relatively moderate “Blue Dog” coalition, to defy House Speaker Nancy Pelosi and her handpicked choice to be House Intelligence Committee chairman, Rep. Silvestre Reyes of Texas, and join House Republicans in voting for the six-month compromise proposed by McConnell. But the compromise left out retroactive immunity for telecommunications firms sought by the Bush administration.

In November, the House, with Pelosi and the rest of the Democrat leadership whipping many of the Blue Dogs into line, passed a FISA bill that failed to include retroactive liability protection. So too did the Senate Judiciary Committee led by Leahy. Fortunately, however, the Senate Intelligence Committee, led by Chairman Jay Rockefeller, West Virginia Democrat, and Mr. Bond, approved on a 13-2 vote a responsible bill which granted retroactive liability protection to telecommunications companies. But under mounting pressure from Dodd, Feingold and others on the hard left, Senate Majority Leader Harry Reid and the Senate Democratic leadership on Jan. 28 managed pull together enough Democrats to block passage of the Intelligence Committee bill, effectively guaranteeing that no legislation would be passed by Feb. 1 – when the six-month fix passed by Congress in August was due to expire. Even Mr. Rockefeller, sandbagged by senior members of his own party, voted against his own bill and with the Dodd-Feingold obstructionists. On Jan. 30 and Jan. 31, with the deadline for reauthorizing FISA about to expire, Pelosi’s House Democrats held a legislative retreat at the Kingsmill resort near Williamsburg, Va, preventing congressional business from getting done. Before the House left town, Congress passed a 15-day extension which expires Saturday.

One caveat is in order about the Intelligence Committee bill to be debated Tuesday in the Senate: The legislation in its current form contains a destructive amendment by Sen. Ron Wyden, Oregon Democrat, which would require a warrant for any overseas surveillance conducted for intelligence purposes. Right now, law enforcement does not need a warrant to conduct surveillance on drug cartels, but the Wyden Amendment would afford such protection to overseas jihadists. But Senator Jon Kyl, Arizona Republican, who has spearheaded efforts to get the Wyden Amendment removed from the bill, is optimistic the Senate will pass a manager’s amendment to the legislation which would effectively neuter the Wyden proviso.

If the Senate passes the Intelligence Committee bill as expected within the next few days, the action shifts to the House, where Pelosi, Reyes and Judiciary Committee Chairman John Conyers will do everything in their power to prevent any legislation containing retroactive immunity from becoming law. But Pelosi and Company have a problem: 21 of the Blue Dogs have signed a letter to the House speaker urging telecom immunity. Pelosi will do everything she can to keep the Blue Dogs in line in an effort to avoid a repetition of the humiliating defeat she received on FISA in August. And all of this will be unfolding in the next three to four days. Look for things to get very ugly this week as Democrats battle Democrats on Capitol Hill.


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Guest columns do not necessarily reflect the views of Accuracy in Media or its staff.

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