Ordinarily, we wouldn't alert international terrorists that the
United States is easing its efforts to detect and dismantle their
plots. But since Congress has already, in effect, given the
terrorists the green light to plot without fear of discovery,
calling attention to the House's gross irresponsibility in allowing
crucial intelligence-gathering laws to expire probably won't cause
further harm.
The House left for vacation on Feb. 14, one day before the
intelligence authorities of the Protect America Act expired. That
law restored intelligence gatherers' ability to listen in on
communications between terrorists located outside of the United
States. Using these tools and others, the U.S. has broken up at
least 19 major terrorist conspiracies (as documented in publicly
available sources) since September 11, 2001.
House Speaker Nancy Pelosi simply refused to schedule a vote on a
bill to make those authorities permanent - a bill that had passed
the Senate with strong bipartisan support. Instead, the House spent
its last day in town before Mrs. Pelosi jetted off to her
daughter's wedding working on an unenforceable resolution to thumb
its nose at the Bush administration.
The House's liberal leadership, in short, put political
grandstanding above national security, wasting time with show
hearings featuring Roger Clemens and debating a politically driven
contempt citation. Perhaps if Osama bin Laden were juicing with
steroids, we could get the House to take the terrorist threat
seriously.
Sadly, this is part of a pattern. Congress has been playing
politics with foreign intelligence gathering and national security
for months.
It began last summer, after a secret intelligence court decided to
assert its authority over the surveillance of communications
between persons located outside the United States when the
communications happen to pass through domestic networks. Listening
in on these conversations had always been considered the executive
branch's responsibility, a key part of the president's duty to
"preserve, protect and defend" the country. The court's decision
meant all foreign surveillance would fall under the Foreign
Intelligence Surveillance Act, requiring spy hunters to spend
hundreds or thousands of hours apiece on applications to that
court. Even the FISA's drafters, who were concerned about
surveillance abuses, never intended this.
The Protect America Act corrected this decision, returning foreign
surveillance to its long-time status quo - but only for six months.
That "compromise" was driven by politics. On the one hand, it
helped lawmakers dodge criticism that they were letting lapse
authorities for critical counterterrorism tools. On the other hand,
it allowed them to delay difficult policy decisions that could
offend critics of the administration and its counterterrorism
efforts.
But as intelligence experts have pointed out repeatedly, temporary
authorities put national security at risk. Temporary extensions
don't allow intelligence officials fighting terrorism to do the
kind of long-term planning necessary to track down terrorists and
unravel their schemes. As documented in the September 11 Commission
Report and the Justice Department's Bellows Report, when Congress
leaves the law unclear in this way, it directly harms national
security.
Nonetheless, at the end of January, Congress rushed to pass a
15-day extension of the Protect American Act. Congress was in a
hurry so House Democrats could leave Washington to attend a party
retreat. Then, just 15 days later, House liberals let some of the
most important tools needed to ward off terrorist attacks expire
completely. Again, it's just national security taking a back seat
to politics.
The politics were at their fiercest concerning a provision of the
Protect America Act and the Senate's legislation to extend
permanent liability protection to American businesses - mostly
phone companies - that have cooperated with the government in
monitoring terrorism. With more than 40 lawsuits pending against
these businesses, the fear of liability could dissuade many from
doing their part to help stop terrorism before more lives are
lost.
National-security law experts know that, in the end, these cases
won't go anywhere. But that end could be five or 10 years away.
Meanwhile the cases would cost these businesses millions in legal
fees and weaken their resolve to assist in vital investigations.
Worse, the lawsuits likely would reveal the means and methods of
intelligence-gathering. We already know from recovered court
documents in Tora Bora that al Qaeda uses our court proceedings to
gather intelligence. This would give them yet another significant
opportunity.
Though trial lawyers and privacy activists are no doubt savoring
their victory in preventing (for now) the reauthorization of the
Protect America Act, the biggest winners are those who would do
America ill. These terrorists have proven remarkably aggressive at
using modern communications technology to plan and organize their
attacks, taking advantage of even the smallest openings and
opportunities to reap terror and destruction.
Thanks to House liberals' irresponsible inaction, terrorists eager
to inflict injury on the United States know that we aren't
listening as closely as we were before.
Andrew M.
Grossman is a senior legal policy analyst in the Center for
Legal and Judicial Studies at the Heritage Foundation. Robert Alt
is a Heritage senior legal fellow and deputy director of the
Center.
First appeared in The Washington Times