In August of last year, Congress passed the Protect America Act to close a dangerous loophole in our ability to collect intelligence on foreign-to-foreign electronic communications when they are routed through U.S. telecommunications infrastructure. This legislation updated the archaic 1978 Foreign Intelligence Surveillance Act (“FISA”) to ensure that a FISA court order would not be necessary where the target was a foreign terrorist in a foreign land— as opposed to when the target is being surveilled on American soil.
Without the fix provided in the Protect America Act, effectively listening to terrorists overseas would be nearly impossible for our intelligence community.
According to the Heritage Foundation, each FISA application requires approximately 200 person-hours of expert analysis per telephone number intercepted. Only about 100 targets are being monitored within the United States, but this alone requires the equivalent of ten full-time government attorneys or intelligence officials— just to prepare the FISA applications.
By contrast, thousands of terrorists are being monitored overseas. Oftentimes, experts do not have the luxury of 200 person-hours to act on a tip. Time is of the essence when trying to capture the communications of a terrorist on the run. If the FISA fix is not made permanent, this additional burden could be added, and foreign intelligence gathering could come to a stand still.
A second consideration of equal importance is the sheer shortage of qualified persons needed to meet those 200 person-hours; as former NSA GC Robert L. Dietz has noted, counterterrorism experts do not grow on trees. This country has nowhere near the experts needed to process the volume of FISA applications that would be necessary without a permanent FISA fix.
Third, Congress must provide liability protection for telecommunications firms that worked with the government to protect Americans following 9/11. With 40 or more civil lawsuits equaling billions of dollars already filed against these providers for their cooperation, Congress should take the just and logical step of providing retroactive immunity to ensure these U.S. companies will work with the government to protect our national security, and comply with legal FISA requests in the future— without risking financial ruin or falling prey to ravenous trial lawyers.
Trent Franks is a Republican Congressman for the 2nd District of Arizona and has spent most of his life working on children’s issues and trying to build a better future for all children.