FISA needs a makeover

Donald Lambro

8/6/2007 12:01:00 AM - Donald Lambro

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.