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.
Congress should have made real reforms months ago to the outdated 1978 FISA by making the Protect America Act permanent. House Republicans showed their dismay and disgust by uniformly walking off the House floor following the announcement that Democrat leadership had opted to adjourn the House of Representatives for a ten-day recess, choosing to reopen critical loopholes rather than allow an up-or-down vote on bipartisan legislation that desperately needed to be brought to the House floor.
The Congressional showdown occurred on February 14, when House leadership refused point-blank to consider the long-awaited Senate version of the FISA bill, which had received hearty bi-partisan support in the Senate, passing with a vote of 68 to 29. The President had even promised to forestall his Africa trip in order to sign the legislation the moment it arrived on his desk; and Speaker Pelosi was well aware that the bill would have passed easily out of the House had she allowed it to be brought to a vote. Instead, as Democrats left town for the President’s Day recess, the Protect America Act was deliberately allowed to expire on midnight, February 16.
It would seem there is no end to the “invincible ignorance” of those who repeatedly deny the mortal threat of the enemy we face. Indeed, in response to calls from House Republicans to bring the urgently needed legislation to the Floor, Majority Leader Steny Hoyer (D-MD) stated, “There is no urgency.”
This is a blatant denial of the consistent threat posed by rogue terrorist organizations that are doing everything within their power to annihilate as many innocent American citizens as possible. Investigations that were vital to national security on February 16th were just as crucial on February 17th. Terrorists certainly did not take a “recess” when Congress did.
The inaction of House leadership demonstrates a failure to act, a failure to lead and a failure to protect our country. America’s intelligence community needs clarity, certainty, and the critical tools necessary to perform their vital work in order to anticipate and disrupt potential plots against our nation.
Democrats have had since last July, when Director of National Intelligence Mike McConnell testified on the crucial need for Congress to bring about true FISA modernization and craft a permanent solution to the gaps in our intelligence system. Instead, House leadership has repeatedly chosen to exploit America’s national security for the sake of political posturing, and they continue to jeopardize the ability of our intelligence community to fulfill the most fundamental purpose of our federal government, to provide for the common defense.
We must pass permanent legislation solution to close our national intelligence gap, and we must do it now.