By U.S. Rep. Heather Wilson
New Mexico Republican
In August, Congress passed legislation to update the Foreign Intelligence Surveillance Act so that our intelligence agencies can listen to foreigners in foreign countries without a warrant. The update expired Feb. 16.
Democratic leaders in the House have refused to allow a vote on a bipartisan Senate bill that would close this intelligence gap. They are playing a dangerous game with our national security.
The Foreign Intelligence Surveillance Act was put in place in 1978 in response to abuses by intelligence agencies in the 1950s and '60s. The law required a warrant to wiretap people in America believed to be agents of a foreign power. The law was written based on the technology in use at the time.
In 1978 almost all international calls were "over the air" and no warrant was required to listen to these international calls. Almost all local calls were on a wire and warrants were required to touch a wire in the United States.
Technology has changed. Today, almost all international calls travel on a wire and global telecommunications networks are such that it is not uncommon for a call from Pakistan to Saudi Arabia to be routed through the United States.
The changes we made to the law in August returned the law to its original intent: warrants are required for people in America and not for foreigners in foreign countries. But this law has now expired, and while the wiretaps started when the fix was in place can continue, new leads have to go through the old, slower process, hampering our ability to gather intelligence on terrorist targets.
These wiretapping rules are particularly important for preventing another terrorist attack. Terrorists use commercial communications. By July of last year the Director of National Intelligence, Adm. Mike McConnell, testified that because of this requirement to get a warrant to touch a wire in the United States, we had lost two-thirds of our intelligence collection on terrorism.
The Senate overwhelmingly passed a bipartisan bill to close this intelligence gap and President Bush has said he would sign the Senate bill. If the House Democratic leadership would allow a vote on the measure it would pass with strong bipartisan support.
Some have argued that this situation is not urgent and that the threat is exaggerated. It is true that the huge backlog of intelligence collection requirements that existed last summer has been relieved by use of the temporary law that has now expired. But intelligence collection is a dynamic business. New leads come in every day. Our capability is degraded and the problem grows worse over time.
Last spring, three American soldiers were kidnapped by insurgents in Iraq. We thought we had a lead on who had them. Because listening to their communications involved touching a wire in the United States, a small army of lawyers in Washington, D.C., spent more than 24 hours developing the "probable cause" necessary to present to the attorney general to get an emergency warrant to begin listening to the kidnappers.
Twenty-four hours of delay to have lawyers get warrants to listen to insurgents in a combat zone is not good enough.
This time-consuming process is a dangerous game that puts Americans at risk. We will never know whether acting faster would have helped find our soldiers. One soldier was later found dead; the other two remain missing in action.
By refusing to bring up the Senate-passed reforms of the Foreign Intelligence Surveillance Act, Nancy Pelosi and the liberal leadership in the House are siding with the American Civil Liberties Union and trial lawyers who have a stake in the billion-dollar lawsuits currently pending against telecommunications companies in at least 15 states.
Some of the companies who have been sued weren't even involved. Others acted in good faith to protect this country. Having looked carefully at the details of this matter, I believe they acted lawfully and have immunity for their actions. The problem is, they can't prove it in civil court without compromising how America collects intelligence against people trying to kill us.
Congress needs to step in and clearly state that they cannot be sued.
Since the recent expiration of the Protect America Act, the United States has already begun to miss potentially critical intelligence from overseas. We have an obligation to keep Americans safe, and liberal Democrats are playing a most dangerous game by refusing to allow a vote on crucial bipartisan reforms to the Foreign Intelligence Surveillance Act.
Heather Wilson is the ranking member of the Subcommittee on Technical and Tactical Intelligence.
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