February 26, 2008 | Commentary on National Security and Defense
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
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