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Monday, August 06, 2007
Donald Lambro :: Townhall.com Columnist
FISA needs a makeover
by Donald Lambro
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WASHINGTON -- One of the conclusions of the post-9/11 investigation into the terrorist attacks was that U.S. intelligence agencies had failed to connect the dots about the unfolding plot against us.

Nearly six years later, our lawmakers are still fighting over whether a key intelligence tool needed to connect those dots should be updated to track terrorist communications networking and help prevent the next attack against the United States.

It is a shameful story of partisan bickering, shortsighted antiwar ideologues and Democratic lawmakers who want to weaken the Foreign Intelligence Surveillance Act (FISA) of 1978 under the specious claim that it violates American civil liberties.

All of this infighting ignores one unarguable reality: We have been kept safe since that dreadful day on Sept. 11, 2001, because of the steps that were taken to uncover what the terrorists are planning before they can carry out their deadly deeds.

One of the critical tools that has helped us to do this is FISA. It allows intelligence agencies, acting under a FISA court order, to intercept terrorist calls abroad as well as their calls to terrorist cells in the United States. Some intercepts were needed immediately, and President Bush, soon after 9/11, authorized warrantless intercepts as needed in order to protect national security.

The New York Times exposed the warrantless activities in 2005, and the Democrats in Congress and their fellow travelers in the American Civil Liberties Union went ballistic -- charging that Bush was illegally spying on Americans.

Unfortunately, Bush, in a gesture of compromise, said he would seek warrants from the FISA court, but denied he had done anything illegal. Indeed, in the past, the federal courts have upheld such authority under the president's inherent constitutional powers to protect the nation.

But as the Wall Street Journal editorialized recently, "This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror."

The reason: In the era of fiber optics and high-speed telecom systems, hundreds of millions of foreign messages and calls are run through U.S. telecommunications networks. A call from a terrorist abroad that is run through our phone network becomes a domestic call, and thus comes under FISA's delayed, time-consuming court-order restrictions.

As the Journal reported, "FISA judges have been open to expediting warrants, as well as granting retroactive approval. But there are 11 judges in the FISA rotation, and some have been demanding that intelligence officials get permission in advance for wiretaps. This means missed opportunities and less effective intelligence."

Making matters worse, some telecommunications companies willingly cooperated with the National Security Agency (NSA), but were smacked by lawsuits and have stopped helping our intelligence agencies for fear of increased liability suits. All of this has cut into the terrorist communications we need to track on a daily basis to keep us safe. Michael McConnell, director of National Intelligence, told the Senate late last month: "We're actually missing a significant portion of what we should be getting."

This means that the FISA law, written in another technological era, needs updating and strengthening to deal with the network changes that terrorists are now exploiting as they plot their next attacks.

But the Democrats who control the legislative machinery of Congress have been dragging their feet every step of the way, resisting the kind of changes Bush has proposed to quickly conduct such intercepts.

Time is of the essence: The government's recent National Intelligence Estimate (NIE), which assesses the terrorist threats against the United States, reports that Al Qaeda has significantly increased its efforts to attack and kill Americans here and abroad.

The report also says Al Qaeda in Iraq is now the "most visible and capable affiliate and the only one known to have expressed a desire to attack us here." The administration wants two key changes in the FISA law:

1. The ability to let NSA track foreign calls routed through the United States on a real-time basis.

2. Give telecom companies liability protection to guard them from lawsuits when they cooperate with intelligence agencies.

But the critics of Bush's FISA reforms seem unmoved by the need to act swiftly in the face of the growing terrorist threat.

The key to protecting America from other attacks is swift intelligence that exposes terrorist plots before they are carried out. Osama bin Laden said in January 2006 that Al Qaeda would hit us again in our homeland. Not many months after that warning, British and U.S. intelligence foiled the plot to blow up passenger flights to the United States.

Now the NIE reports warns of stepped-up activity to carry out other plots against us, and the chief of National Intelligence says our intelligence is missing large portions of critical information we should be collecting.

If one of these plots succeeds before Bush's reforms can be enacted, Democratic leaders will have a lot of explaining to do during their August recess.

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About The Author

Donald Lambro is chief political correspondent for The Washington Times.

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If I hear
If I hear another reporter use the words "domestic spying" I will vomit. But, it is only normal since most newspeople long ago gave up any semblance of fairness on this subject.

I don't have a problem
with the gov tapping purely foreign calls that are routed through the U.S. without a warrant.
If however one of the 'legs' of the conversation is in the U.S. you need a warrant (even after the fact, as FISA allows).

Get yourself a big bucket charlie
The Dems do want terrorist intel. They want it so when an attack happens they can say either "we knew about it, why didn't you?" or to mobilize the tinfoil hat brigade to concoct a conspiracy theory blaming the Bush admin for orchestrating the attack. Of course, if anyone asks them in the first scenario, "If you knew WTF did you do nothing to prevent the attack?" they respond "what we did or didn't do isn't the issue, it's another failure of the Bush WH.It's not our fault." The MSM will, naturally declare any attack a Bush failure while ignoring any Dem complicity.

What the Hell are the Democrats Thinking
Finally they get something where they can use it for leverage and to their advantage and what do they do? Drop the routine fly ball!

The President waits until ONE WEEK before Congress is scheduled to go on vacation and then sends the bill over to Congress and starts to complain about how urgent it is to get the bill passed. Why didn't the Democrats raise a HUGE stink about that?

The President's head of the NSA negotiates and compromise with Congress on the bill and the President steps in and refuses to budge from his initial proposal. Why didn't the Democrats scream murder?

The Democrats say that they have an alternate plan and that they are going to offer an amendment to straighten all of this out. Well, duh. Like the President isn't going to veto any type of idea there.

Finally. The President has refused to allow anyone to testify fully on these issues, claiming executive privilege. The Democrats actually have a huge potential leverage with the President on executive privilege. Your staff doesn't start testifying, and testifying truthfully, you don't get your bill. So what do the Democrats do? They fold.

Almost, but not quite, makes me think about NOT voting for a Democrat.

Liberal Hair Splitting
The Liberals don’t care if America is attacked again! Just as long as they can keep their Lips attached to the ACLU’s A$$!

Build those walls; erase those dots
Remember how those hypocrites screeched about BOOOOOSH failing to connect the dots after Sept. 11?

Well, the Evil Leftists clearly OPPOSE connecting intelligence dots to reveal terrorists intent. They also very clearly favor building the walls HIGHER between intelligence agencies. What else could the screeching against "domestic spying" mean?

Evil Leftists: part of the natural alliance with Islamofascists AGAINST America!

Dave Stone
gotta agree. The FISA law under Hillary is potentially very dangerous. We have already seen Clinton's abuse of power.

Dogjudge
Help me out and this is not a trick - you are saying Bush would not allow anyone to testify about the FISA ruling due to executive privilege. I think you're wrong on that, it's the argument over the judge filings over which he is claiming executive privilege, isn't it? Also, claiming Bush waited until too late? What is that, it's the Democrats who caused this whole stink (aided by the NYT), not Bush. Bush can be criticized for going along slightly with the Dems when he said he'd go to FISA in certain cases, but overall, it's the Democrats who caused this whole thing. Going after Bush for playing the system timing wise is smart politics. What's wrong with that? Am I missing something here?

oops!
I meant "judge firings"! Sorry about that.

Conservative with concerns
It seems to me it would be fairly easy to eliminate the concern of many people, myself included, with some simple language.
Two things need to happen : One add a provision that it can ONLY be used against foreign terrorists. Two: Its a felony to use it for any other purpose and any information obtained is part of the poisoned tree and cant be used for other legal reasons.

uwcharlie
It is my understanding, and I'd be happy to find out that I'm wrong, that President Bush waited until approximately two weeks ago to submit this bill to Congress. He then turned around and started complaining when the Democrats didn't pass the bill.

My perception may be wrong, but my feeling is that he did this intentionally. Give Congress as little time as possible and put them in a time restraint (Congressional recess). That way he could play it to his ultimate advantage. Politics? Yes. But the Democrats should have raised it as an issue and never did. Ugh.

As for the issue. There's two that I know about. One is the issue that Boehner brought up, by releasing classified information by the way, that the FISA court had ruled AGAINST the administration. That was one of the reasons for the change in the law. (By the way, whether it was intentional or unintentional, I do have to laugh about Boehner, given the administration's complaining about others leaking classified information.)

The other issue, and where we get into executive privilege, relates to control of all of this by the Attorney General. I know that Dick Durbin (Senator from Illinois where I live) brought this issue up. That was one of the sticking points and one that the administration has countered with executive privilege claims.

If I'm wrong, please let me know.

dogjudge: a typical Leftist
"Finally they [the Dems] get something where they can use it for leverage and to their advantage and what do they do? Drop the routine fly ball!"

Nevermind what is best for the country, oh no; what's important here to dogjudge and Leftists like him is that a political stick was dropped, one which could have been used to once again bash Bush over the head.

Of course, this is done in the best interests of the country, since the country is unquestionably better off with Dems in charge, and anything that brings that situation about MUST, be definition, be good...

... god you people make me want to puke.

FergusMacLennan
Yeah, the Democrats enabling this President to take away MORE of your rights AND to give him these powers WITHOUT any oversight.

Think you're going to puke now?

Just wait until Hillary (whom I would never vote for by the way), or any other Democrat becomes President.

Fergus
You haven't been seen aroundmuch, but DJ is certainly as you describe...typical. No sweat. You should be where I've been lately. Nice to "see" you around TH again. Need a barf bucket? GunnyG has a sweet supply!!

As I underestand it
... the bill's timing is related to the recent decision by a FISA court judge that surveillance of foreign communications that are routed through the US is NOT allowed under FISA. This is frankly a bad decision, but if it can prompt Congress to update the law it's not all bad news. FISA court decisions are not reported directly to the people, for good reason: they relate to intelligence sources and methods. We occasionally find out about them through politicians and (regrettably) the media.

As a retired Naval intelligence officer, I have two comments. First, FISA (from 1978) needs this technological update. It imperils no civil liberties of US citizens, and Democrats need to just git-R-done.
Second, I share the concern of Dave Stone about warrantless wiretapping of calls to and from persons in the US (who may or may not be American citizens -- and in fact, are usually not). We can't trust this authority in the hands of most administrations.

I believe FISA also needs to be updated to allow standing, routinely reviewed warrant categories, rather than requiring a warrant for each individual instance of a communication path. In 1978 that meant each instance of a subscription landline phone number; today it means otherwise untraceable prepaid cell phones, and wireless internet anywhere on the globe. However, I am not a friend of warrantless wiretapping when communications to and from the US (content, not just transmission path routing) are involved. Accountable oversight is essential – it's the methods of the oversight process that need updating.
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