Contact: Claude Chafin 202.225.2811

Democrats Miss Chance for Unity on Security
Opinion Column for the Memphis Commercial Appeal

MB on Floor

Washington, Feb 28, 2008 - Opportunities for bipartisan consensus on critical issues are rare. Congress has such an opportunity with the Protect America Act. The legislation permanently updates the Foreign Intelligence Surveillance Act (FISA) of 1978 which governs surveillance of terrorist communications in the United States. Since August, the intelligence community has been operating on a temporary law, the Protect America Act, which allowed it to monitor the communications of foreign terrorists in foreign lands to disrupt terrorist attacks.

Permanent modernization and strengthening of our terrorist surveillance laws had to be passed last week before the latest temporary fix expired. The House had an opportunity to vote last Thursday on the same modernization bill passed in the Senate by a vote of 68-29. Twenty-one House Democrats indicated they would vote in favor of the Senate-passed version.

Unfortunately, the Democrats' leadership built a partisan bully pulpit from the splinters of bipartisan consensus. As a result, America's ability to prevent attacks and track terrorists is diminished. As Sen. Jay Rockefeller of West Virginia, the Democratic chairman of the Senate Intelligence Committee, put it: "... The quality of the intelligence that we are going to be receiving is going to be degraded."

The main hurdle to surveillance is the rapid evolution of communications technology that both intelligence agencies and terrorists routinely use. Terrorists take advantage of new technology, but the FISA has not kept up.

In 1978, getting a telegram wasn't out of the ordinary. Eavesdropping meant climbing up telephone poles. Today a teenager can send thousands of texts a month. Imagine what a terrorist is doing. In the digital era, most communications connect with American infrastructure, even when the people communicating aren't in America. Until Congress updates the law governing this technology, the government will be unable to track terrorists quickly and reliably.

Last spring, the intelligence community began to face a backlog caused by FISA's cumbersome legal requirements. It was the worst possible time for three soldiers in Iraq to get kidnapped by terrorists. Yet that is exactly what happened on May 12.

By 10 a.m. on May 15, investigators thought they had a lead on the kidnapped soldiers. To follow up, investigators needed to gather critical and timely intelligence. At 10:52 a.m. those investigators were told that the FISA law required them to get a warrant. This is the same outdated language our intelligence community is functioning under since the Protect America Act expired last week.

Back to last May: Probable cause needed to justify a warrant wasn't established until 5:15 p.m. Then the Justice Department lawyers had to track down the attorney general personally because the other three people at Justice who could authorize emergency surveillance were not available. Surveillance was authorized at 7:18 p.m. on the belief that the FISA court would grant a retroactive warrant within the week. Nine hours and thirty-eight minutes from the first tip, eavesdropping finally began. One of the soldiers in question was later found dead. The other two are still missing.

The same rules that applied to this case currently apply if the intelligence community believes it has discovered a foreign terrorist discussing a plot against the United States, like those who attacked us on 9/11. Because the Protect America Act has expired and we are under the old terrorist surveillance laws, the intelligence community will have to waste valuable time on bureaucratic legal paperwork instead of spying on the terrorists.

After the House failed to pass long-term FISA modernization, Majority Leader Steny Hoyer of Maryland said: "I don't think anything is going to erode." I wish we had more people in government with his clairvoyance.

I hope that nothing happens before we resolve this issue. I hope no more troops in Iraq are taken hostage. I hope we pass the next weeks peacefully and that al-Qaida gives House Speaker Nancy Pelosi the time she needs for grandstanding. I know that 21 of my colleagues on the other side of the aisle hope so too. They wrote to Pelosi to express their belief that the "consequences of not passing (the Protect America Act) could place our national security at undue risk."

Of course, as another Democrat once said, "Hope is not a strategy."