January 31, 2008
By James Jay Carafano, Ph.D., Robert Alt and Andrew M. Grossman
This week, Congress passed a 15-day extension of the Protect
America Act, just two days before the law was set to expire, so
that House Democrats could leave Washington for a party retreat.
The Protect America Act updated the Foreign Intelligence
Surveillance Act (FISA) to exempt surveillance of communications
between persons located outside of the United States when the
communications happen to pass through domestic networks, a type of
communications to which Congress never intended FISA to apply. A
15-day extension is not good enough, because it puts
intelligence-gatherers in an impossible situation: They must either
try to guess what sort of legislation Congress will pass and act
accordingly or assume that FISA will apply and begin the arduous
task--at the cost of hundreds of hours of work per FISA application
and potentially weeks or months of delay--of bringing this
surveillance within the FISA regime. Congress must make the
authorities in the Protect America Act permanent and, to further
aid intelligence-gathering cooperation, enhance its provisions to
provide retroactive and permanent liability protection to American
businesses that cooperate with reasonable intelligence
Playing Politics with Security
The U.S. government has publicly acknowledged thwarting over 19
terrorist conspiracies aimed at the United States since September
11, 2001. Covert intelligence and surveillance have likely stymied
even more threats. These results have been achieved using, in part,
surveillance and investigatory powers under the Patriot Act and
tools like the Terrorist Surveillance Program (TSP). The Protect
America Act was intended to strengthen and clarify civil liberty
protections under the TSP and to ensure that the program remained
an effective instrument for terrorist surveillance.
When Congress passed the Protect America Act last spring, it set
the bill to expire in six months. That "compromise" was driven by
politics. On the one hand, it allowed Members of Congress to dodge
criticism of allowing statutory authorities for critical
counterterrorism tools to lapse, and on the other, it allowed them
to put off having to make difficult policy decisions that could
offend critics of the Administration and the TSP. The bill just
passed by Congress does more of the same, stretching out the debate
while trying to give lawmakers cover from criticism that their
inaction is undermining counterterrorism efforts.
Extending the statutory authorities in the Protect America Act
would not be controversial but for politics. This particular
debate, in fact, is only a recent one. The Protect America Act was
intended to correct an erroneous FISA Court decision seeking to
extend that court's power to control foreign surveillance that was
never intended to be covered under FISA and never had been. The
decision was based, according to those who have seen it, on the
irrelevant details of recent changes in technology that do not
implicate the core concerns behind FISA. Congress never intended
FISA to apply to wholly international communications that do not
involve persons in the United States, but instead recognized that
surveillance of wholly international communications is an inherent
power of the President and part of his solemn responsibility to
protect America's security. Permanent extension of this authority
simply returns FISA to the status quo before the erroneous court
decision, thereby allowing vital and uncontroversial intelligence
work to continue unabated.
No Free Lunch
Passing temporary extensions of the Protect America Act,
however, makes Americans less safe than providing permanent
authority. Serious counterterrorism investigations can take years.
They can consume vast amounts of manpower and resources. Creating
uncertainty over what authorities will be available in the future
greatly complicates the task of the intelligence services and the
telecommunications industries that must cooperate with them to make
their efforts efficient and effective. The longer Congress drags
out and leaves unsettled this vital issue, the more it hamstrings
effective long-term planning and complicates decisions about future
operations. Thus, American security does pay a price every time
Congress kicks the can down the road.
The risks to national security of bringing communications
between persons located outside of the United States that happen to
pass through domestic networks inside the FISA process are great.
Just preparing to present an application to the FISA Court, which
grants orders for classified surveillance programs, takes hundreds
of hours of lawyer and intelligence analyst time. Though critics
are quick to point out that the FISA Court rejects few
applications, this is due to the immense time and effort Justice
Department officials dedicate to preparing FISA applications, which
are over 100 pages on average, and the back-and-fourth process
entailed in FISA Court review. Potentially delaying crucial foreign
intelligence-gathering operations by weeks or months, as temporary
extensions threaten to do, simply endangers national security. This
is particularly distressing when there is no legitimate purpose
other than political gamesmanship for doing so.
Inconsistency and uncertainty with respect to legal authorities
put national security at risk. As documented in the 9/11 Commission
Report and the Department of Justice's Bellows Report, the legal
authorities behind FISA and foreign surveillance in general are
extremely complicated, frequently leading to confusion and
mistakes. Intelligence officials work hard to stay within the
bounds of the law, and when the law is unclear or uncertain, they
become even more conservative, denying some surveillance requests
that would be legal and requiring more time to approve others that
fall well within the law. In some cases, confusion may cause agents
in the field to avoid requesting important surveillance altogether.
When Congress leaves the law unclear, it directly harms national
Stop the Insanity
It is time for Congress to stop playing politics with national
security and pass sensible legislation that meets the needs of
those who protect the country from attack while upholding
Americans' civil liberties. The Protect America Act accomplished
these crucial goals.
First, its major provision concerns persons not on U.S. soil.
Constitutional protections were never intended to extend to cover
wholly foreign intelligence gathering for national security
purposes. Further, this surveillance relies on the same
minimization procedures that have always applied to reduce the
intrusion on the privacy interests of Americans who (whether
wittingly or unwittingly) communicate with suspected terrorists or
other enemy soldiers.
The act also wisely extended prospective immunity to
communications providers that have worked with U.S. intelligence
services to facilitate intelligence gathering for national
security. With 40 or more civil lawsuits already filed against
these providers for their cooperation, Congress should take the
logical, fair step and provide retroactive immunity as well.
The bill ultimately should go further and expressly authorize
the President to use his constitutional authority to conduct the
intelligence gathering at home and abroad necessary to protect
America from future terrorist attacks. That, however, is most
likely a debate for another day. For now, Congress should make the
provisions of the Protect America Act permanent and let the
government get back to the business of stopping terrorists before
James Jay Carafano,
Ph.D., is Assistant Director of the Kathryn and Shelby Cullom Davis
Institute for International Studies and Senior Research Fellow for
National Security and Homeland Security in the Douglas and Sarah
Allison Center for Foreign Policy Studies at The Heritage
Foundation. Robert Alt is Deputy Director of, and Andrew M. Grossman is
Senior Legal Policy Analyst in, the Center for Legal and Judicial
Studies at The Heritage Foundation.
Congress's 15-day extension of the Protect America Act putsintelligence-gatherers in an impossible situation.
James Jay Carafano, Ph.D.
Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow
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