Congress Must Make Permanent FISA Reforms

Posted October 12, 2007 at 4:56pm

In August, Congress took advantage of a rare opportunity to swiftly and effectively improve our nation’s security by working with the Bush administration to enact the Protect America Act. By modernizing the Foreign Intelligence Surveillance Act, the new law has strengthened our ability to collect foreign intelligence on terrorists overseas, closing a dangerous intelligence gap that existed before the law took effect. Critical intelligence is now flowing in and helping us better understand our enemies’ intentions.

Unfortunately, the law will expire in February. So Congress is faced with a choice: Will it keep the intelligence gap closed by making the law permanent and allowing the continued collection of essential foreign intelligence? Or will Congress limit our ability to collect this intelligence and keep us from staying a step ahead of the terrorists who want to attack us?

These questions are on the table now as Congress considers a new FISA bill. The administration’s position remains clear: No changes in law should have the effect of reopening the intelligence gap that existed before the Protect America Act. In addition, Congress must grant liability protection to companies who are facing lawsuits only because they are believed to have assisted in efforts to defend our nation following the attacks of Sept. 11, 2001.

When first enacted in 1978, FISA aimed to protect the privacy rights of Americans by requiring intelligence officials to get a court order before they could target someone in the United States for electronic surveillance. Conversely, FISA did not generally require the government to get court approval before conducting surveillance targeted at individuals in foreign countries.

Of course, the Congress of 30 years ago could not have anticipated sweeping changes in communications technology, such as the Internet and wireless networks. These advances have had the unforeseen consequence of often requiring intelligence officers to get a court order before they could begin intercepting communications from foreign intelligence targets located in foreign countries.

According to Director of National Intelligence Michael McConnell, because the law had not kept pace with technological changes, we were missing opportunities to collect communications critical to identifying and warning Americans about terrorist threats. The Protect America Act temporarily fixed this problem by restoring FISA to its original and proper focus of protecting the privacy of those inside the United States, not overseas terrorists plotting future attacks.

The Protect America Act did not weaken the strong protections FISA and other laws provide to Americans here at home. Contrary to some common myths, the act does not authorize the government to target Americans with “warrantless domestic wiretapping,” to browse through domestic mail, to search Americans’ homes or to collect U.S. citizens’ library and medical records. The law does provide an appropriate role for the FISA court, and the administration is firmly committed to keeping Congress informed of how PAA is being implemented.

The administration’s goal can be summed up easily: We want our intelligence professionals to have the tools and flexibility needed to prevent a terrorist attack, while protecting the rights of Americans here at home. Essential provisions of the Protect America Act expire in February, but the intent of al-Qaida and other terrorist groups to attack our nation remains undiminished — as we saw last month when a terrorist cell planning attacks on Americans was disrupted in Germany.

Congress must keep a critical intelligence gap closed by making the FISA reform in the Protect America Act permanent, and Congress must provide meaningful liability protection to those patriotic Americans who may have assisted our nation following the Sept. 11 attacks.

Frances Fragos Townsend is assistant to the president for homeland security and counterterrorism.