Politics & Policy

Dems’ Dangerous FISA Game

Here is the bottom line: The legal authority for the United States intelligence community to collect foreign intelligence — information that protects Americans from terrorist attacks and that our soldiers in harm’s way rely on to do their duty — will expire at midnight on Friday. And Democrats are perfectly willing to allow that to happen.

Not all of them, thankfully. A few responsible Democrats in the Senate have come together with Republicans and the White House on an intelligence overhaul. President Bush stresses the proposal’s growing bipartisan support, but no one should go up in a balloon over that. The very fact that it attracted such broad support from Senate Democrats — the same folks who have blocked sensible reform up until now, and who fought reauthorization for the Patriot Act tooth and nail — signals that our enthusiasm should be tempered. To call the proposal imperfect is to be charitable.

Nevertheless, the Senate bill does meet two critical objectives. First, it authorizes the NSA and the CIA to continue conducting surveillance on foreign enemies of the U.S. without seeking probable-cause judicial warrants. A warrant requirement for such monitoring outside our borders — which was expressly avoided when Congress initially enacted the Foreign Intelligence Surveillance Act in 1978 — would bring tens of thousands of enemy communications under FISA’s burdensome judicial procedures. Foreign intelligence-collection would slow to a crawl. Yet, that was just what a secret 2007 FISA court decision required. The Protect America Act reversed that ruling last summer, as a stopgap measure. But that authority runs out Saturday — which is why Congress must act.

Second, the Senate bill provides retroactive immunity for telecommunications companies that assisted the government in carrying out the NSA’s warrantless terrorist-surveillance program during the national-emergency conditions that obtained after 9/11. Contrary to critics’ claims, this immunity is not sweeping. It is appropriately limited: protecting from suit only providers who can show they either did not assist the program or assisted only on written assurance from the government that the program was legal.

Regardless of what Democrats think about the legality of the program, it is grossly unfair and counterproductive to strike out against the telecoms. The telecoms acted patriotically and in good faith. Indeed, every federal appellate court to rule on the issue — including the specialized appellate court created by FISA — has held that FISA did not and could not strip the executive branch of its constitutional authority to order surveillance, without judicial participation, in order to protect the United States from foreign threats.

If telecoms that cooperate in good faith with government demands remain vulnerable to ruinous lawsuits, they will never cooperate willingly. And it is no answer to say government can compel them. It may be able to force them to assist in setting up wiretaps; it cannot force them to contribute their expertise in advising the intelligence community — the expertise that provides our technological edge over the terrorists committed to killing Americans.

These two crucial benefits, in addition to its streamlining of FISA procedures, make the Senate proposal’s many flaws easier to swallow. We simply cannot allow intelligence collection to shut down while our soldiers are at war abroad. Nor should we forget that the enemy they confront on the battlefield has shadowy allies around the world, supported from abroad, whose fondest goal is to reprise 9/11 on an even more barbarous scale.

Yet House Democrats — doing the bidding of the MoveOn.org crowd — are courting just that risk. They are playing roulette with our security for no better reason than to preserve the ability of the ACLU, CAIR, and other anti-Bush activists to press their lawsuits.

On paper, of course, the president still has his constitutional authority. In practice, however, if Democrats allow the Protect America Act to expire, why would the telecoms honor warrantless requests for cooperation? By politicizing our national security, Democrats have turned patriotism into a legal liability and signaled loud and clear their willing complicity in scapegoating the companies for a trumped-up “scandal.” Cooperation would only lead to more lawsuits — which is always good news to the trial bar and the campaign warchests of its many congressional beneficiaries. As a practical matter, then, if the House does not act to pass the Senate bill, we will be deaf to the deadly machinations of our sworn enemies.

Finally, it’s worth noting the stands taken by the Democrats’ two remaining presidential contenders. Barack Obama was one of 29 senators to vote against the Senate bill, aligning himself with a hard Left prepared to leave America defenseless. Hillary Clinton, who has indicated the same sympathies, was one of three senators who did not even deign to show up for the most important votes of her Senate career. John McCain, the presumptive GOP nominee and among the majority of 68 senators who supported the bill, must make sure, over the course of the continuing presidential campaign, that Americans understand how unfit his opponents are to protect this nation.

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