The Magazine

The "Don't Protect America" Democrats

The House Democratic leadership should bring the FISA Amendments Act to the floor.

Mar 17, 2008, Vol. 13, No. 26 • By MATTHEW CONTINETTI
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It's been three weeks since Democrats in Congress allowed the Protect America Act of 2007 to expire. Three weeks in which House Democrats have allowed marginal special interest groups veto power over national security legislation. And no one in the House Democratic leadership seems particularly bothered by it.

Without a new law, intelligence professionals have to establish "probable cause" that the target of surveillance is a terrorist to the satisfaction of a judge on the court created by the Foreign Intelligence Surveillance Act of 1978 (FISA) before they can intercept the suspect's communications. This is an onerous and unprecedented burden on the intelligence community. FISA court orders were never meant to apply to foreign intelligence missions overseas. The last time U.S. spooks had to rely on FISA court approval to gather intelligence overseas--in the first half of 2007--the backlog of warrant applications quickly grew so thick that America's ability to hear what her enemies were saying was degraded by "70 percent," according to the director of national intelligence, Vice Admiral Mike McConnell. If FISA is not updated, it will be only a matter of time before we reach that point again. Something's gotta give, in other words. And soon.

The good news is that there is bicameral and bipartisan support for a new law, the FISA Amendments Act, which updates the U.S. intelligence community's electronic surveillance procedures and provides immunity to "electronic communication service providers" for cooperating with the government. The Democratic Senate already has passed the law by two to one. The chairman of the House intelligence committee, Texas Democrat Silvestre Reyes, has said he is open to a compromise along the lines of the Senate bill. It is widely expected that the House would pass such a compromise. And President Bush would happily sign it.

And yet: No sooner had the ink dried on Ellen Nakashima and Paul Kane's March 4 Washington Post story--"Wiretap compromise in works"--than House Democrats began to walk away from said compromise. On March 5, House Majority Leader Steny Hoyer said there might be a vote on the new law at the "beginning of next week." On March 6, Speaker of the House Nancy Pelosi said, "We are still working very hard," but House Democrats "are not going to abandon the Constitution." A vote may be put off until after next week's congressional spring break.

Why won't the House leadership bring the FISA Amendments Act to the floor? Democrats provide different reasons. The Capitol Hill publication CongressDaily quotes House Democratic aides who cite the "tight floor schedule" as the reason this necessary and important law has to wait. Yet the House found time for "HR 1143," which approves a lease agreement between the Interior Department and the Caneel Bay luxury beach resort in the U.S. Virgin Islands. (The service is supposed to be fantastic at Caneel Bay, incidentally.)

Other Democrats blame Bush. In a February 25 Post op-ed, the chairmen of the House and Senate intelligence and judiciary committees accused the president of deploying "scare tactics and political games" because he is "desperate to distract attention from the economy and other policy failures" and wants to "use this issue to scare the American people."

All of which is partisan silliness, of course. Truth be told, the Democrats are not scared of Bush anymore. But they are scared of the left, which is adamant that the "electronic communications service providers"--mainly giant telecoms--not be granted immunity from litigation for cooperating with the government on foreign surveillance of terrorists during the years when FISA did not have authority over the program. The left wants the roughly 40 pending lawsuits against the providers to proceed so that--to quote MSNBC "news" anchor Keith Olbermann--the "AT&Ts and the Verizons" will be held accountable "for their systematic, aggressive, and blatant collaboration" with Bush's "illegal and unjustified spying on Americans." Just imagine, Herr Olbermann continues, his bile rising: government .  .  . and business .  .  . working .  .  . together! "What else is this but fascism?"