The House is Playing Russian Roulette with Federal Wiretap Powers
By Jeb Bradley
EVEN THOUGH the U.S. House of Representatives has met a total of only 12 days in 2008, it adjourned on Feb. 14 for 10 days while allowing the vital Protect America Act (PAA) to expire.
Last August, Congress passed the PAA, closing a dangerous loophole in American terror protection laws. Prior to the change, national security officials were required to seek special warrants from the Foreign Intelligence Surveillance Court to intercept communications from suspected foreign terrorists in foreign countries -- a time-consuming and difficult process.
The PAA legislation was authorized for only six months, which meant the law expired on Feb. 16. In a bipartisan 68-29 vote, the Senate passed a full renewal. The House refused to consider it before adjourning.
The sticking point is immunity for telecommunication companies that cooperated with the government after the 9/11 attacks to prevent further terrorism. There are some 40 pending lawsuits filed against AT&T, Verizon and Sprint.
What company would ever cooperate again with the government if subject to class action lawsuits that could bankrupt it?
Writing in The Washington Post last week, Director of National Intelligence Mike McConnell stated, "Senior intelligence leaders have repeatedly testified that providing retroactive liability protection is critical to carrying out our mission. We are experiencing significant difficulties in working with the private sector today because of the continued failure to address this issue."
However, Rep. Carol Shea-Porter, commenting on the expired legislation in the New Hampshire Union Leader, accused the President of "fear-mongering" and stated, "This is really a big scare tactic. Nothing terrible is going to happen."
Really? Try telling that to Maria Duran of New York, the mother of Army Spc. Alex Jimenez. Duran described her ordeal to the New York Post. Her son was kidnapped on May 12, 2007, in Iraq and later executed by the terror group Islamic State of Iraq. According to a timeline national security officials provided Congress, for nine hours and 38 minutes after receiving a tip about the abduction of Spc. Jimenez and two other soldiers, lawyers in Washington scrambled to follow the necessary guidelines to create the "probable cause" required for surveillance to begin on the suspected kidnappers. So for nearly 10 hours American rescue efforts were constrained and perhaps doomed by this slow-footed bureaucratic response while brave soldiers died.
Duran told the New York Post, "Oh my God. I just keep asking myself, where is my son? What could have happened to him?"
She said she was especially frustrated "because I thought they were doing everything possible to find him."
This is not fear mongering.
The Protect America Act passed three months after the death of Spc. Alex Jimenez. Carol Shea-Porter voted against it. Now House leaders on Capitol Hill are defending allowing that law to expire by saying that existing investigations already authorized are allowed to continue. They are correct about ongoing investigations. However, any new investigation of a foreign terror suspect overseas must now satisfy probable cause to get a warrant for surveillance, even in an emergency situation like the one that tragically faced Spc. Jimenez and the two other Americans.
In another scenario, intelligence officials may come across a new foreign terror suspect, perhaps in Afghanistan, plotting against the United States. The Protect America Act would have allowed immediate surveillance before the suspect could change cell-phone or Internet accounts. But post-PAA, lawyers hammering out probable cause in Washington may be too late in the real world to protect Americans.
The 9/11 Commission cited a failure of imagination when confronting terrorism. Recall the discussion after 9/11 of how, despite some suspicions, our country had not been able to "connect the dots" when it was discovered that the 9/11 attackers had taken flying lessons for no apparent reason. Have we now tied one hand behind our backs and limited our technological advantage over terrorists?
While the House adjourns for vacation, it is hard to imagine that the risks facing America have not increased. What does the House say to Ms. Duran? For its 12 days of work in 2008, nothing.