House Democrats probably can't sustain their stand against renewing the program over the long term, so they will have managed a Pyrrhic defeat, losing on the policy and exposing a major political vulnerability for the fall.
President Bush compromised with Senate Democrats on a renewal of the surveillance program that passed by a 2-1 margin. The program monitors the communications of terrorist suspects outside the United States, which the president has the inherent authority to do. The legal and political controversy has arisen because many overseas communications now -- in the age of fiber optics -- travel through the United States and has gotten entangled with the Foreign Intelligence Surveillance Act.FISA plainly isn't meant to apply to foreign communications. Its purpose is to protect people in the United States from being targeted for national-security surveillance unless there is a finding of "probable cause" by a special FISA court that they are an agent of a foreign power. But a judge on that FISA court ruled early this past year that foreign communications must meet the same probable-cause standard under the law. According to Director of National Intelligence Mike McConnell, our intelligence yield dropped off by a catastrophic two-thirds.
The urgency of the situation led to the quick passage this past summer of the Protect America Act that exempted foreign communications from FISA's restrictions. The act had a six-month sunset. The House has now let it expire.
House leaders shrug and say that the essential authorities remain in place for another six months. This is a dodge. We can continue to surveil current overseas targets, but can't pick up any new targets without FISA's onerous restrictions -- a severe hampering of our intelligence.
The real sticking point in the debate concerns retroactive immunity for telecommunications companies that have been cooperating with the terrorist-surveillance program. They have been targeted with dozens of lawsuits seeking hundreds of billions of dollars in damages for alleged violations of civil liberties. The mere threat of these suits could be enough to prevent the companies from further cooperation with the government, allowing trial lawyers and civil-liberties groups to eviscerate the terrorist-surveillance program by lawsuit.