December 12, 2007

Fixing FISA

The new Attorney General takes to the pages of the Los Angeles Times to call for immediate action to solidify FISA reforms. Michael Mukasey emphasizes the critical nature of FISA in the war on terror and lauds the compromise legislation passed almost unanimously by the Senate Intelligence Committee. However, that bill has now stalled, thanks to attacks from the Left against Democrats who supported it, and Mukasey wants to see it passed:

The Senate Intelligence Committee's bill is not perfect, and it contains provisions that I hope will be improved. However, it would achieve two important objectives. First, it would keep the intelligence gaps closed by ensuring that individual court orders are not required to direct surveillance at foreign targets overseas.

Second, it would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful.

It is unfair to force such companies to face the possibility of massive judgments and litigation costs, and allowing these lawsuits to proceed also risks disclosure of our country's intelligence capabilities to our enemies. Moreover, in the future we will need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.

With two months remaining before the previous legislation's expiration, Mukasey wants to see closure on this topic. Congress gave themselves a short sunset provision in order to temporarily enable vital intelligence gathering while it sorted out the permanent fixes to FISA. That ended a months-long period where the NSA could not effectively pursue leads, and without a fix by February 1, the US will once again let intel fall through their fingers.

Unfortunately, the compromise reached in the Senate committee has been derailed by the House and some members in the Senate. Both have moved to strip the new FISA bill of its limited provisions of immunity for telecom providers who assisted the NSA with the assurance of the government of its legality. As Mukasey writes, this provision restores fairness that has been lost in the zeal of some to punish people for assisting in the war on terror. It will disincentivize telecom companies from providing assistance in the future, which could leave us unable to detect attacks via messaging between terrorist plotters.

More problematic, the House version puts requirements for warrants on foreign communication that didn't exist before. Instead of focusing on how to offer our intel agencies (who lately need all the help they can get) collect better data faster and more efficiently, it sets up more obstacles for obtaining surveillance on foreign communications. In a time of war, this not only seems absurd but almost deliberately obstructionist.

Congress has now had all year to chew this bone, and so far can only come up with a six-month patch and a lot of hysterical Orwell references. We have to have the ability to gain intel from foreign communications in real time and nimbly capture streams as they appear. Without that ability, we leave ourselves unnecessarily vulnerable to attack. If this Congress can't get this job done in the ten months they've had, then it makes a great argument for new leadership in 2008.


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