Pelosi's Reckless Gamble on FISA

With great fanfare, House Speaker Nancy Pelosi announced her agenda for her first 100 hours last January. One of the seven things she promised to do was to enact all the remaining recommendations of the 9-11 Commission. One year later, with few of those items accomplished, Pelosi is gambling recklessly that terrorists will miss the opportunities given them by the House’s failure to pass essential fixes to the Foreign Intelligence Surveillance Act. 

When the 9-11 Commission’s report came out in July 2004, its most scathing criticism of the intelligence community was for failing to “connect the dots:” to cooperate in gathering, analyzing and using the information we have on terrorists’ intentions and capabilities. The “connect the dots” mantra was the basis for legislative reorganizations of the intelligence community, including the creation of the new Director of National Intelligence to coordinate all the agencies and the role of the new Department of Homeland Security in analyzing intelligence on terrorist threats. 

But before you “connect the dots” you have to gather them. The National Security Agency’s terrorist surveillance program, created in secret by presidential order, was enormously successful in intercepting cell phone calls, e-mails and other electronic communications between terrorists and their sympathizers. It resulted in the gathering of huge amounts of data and the interdiction of a number of terrorist attacks. It has also helped battlefield operations in Iraq and Afghanistan because the separation of national intelligence gathering assets and armed forces operations has — wisely — been almost completely eliminated.

That NSA top secret program suffered two damaging blows. First, its effectiveness was reduced when the New York Times published its existence, despite direct pleas from the White House. Second, a secret decision by the FISA court this time last year imposed a new requirement that a FISA court warrant be obtained before NSA could listen to communications even between foreigners overseas if the communication passed through US-located computers and switching equipment.

The decision effectively blocked surveillance on new “targets” — people, specific telephone numbers and e-mail addresses — without FISA warrants. The effect on our intelligence gathering was so devastating that in April 2007, DNI Adm. Mike McConnell went in person to the leaders of the Senate Select Committee on Intelligence leaders — Sens. Jay Rockefeller (D-W.V.) and Christopher (“Kit”) Bond (R-Mo.) — and asked for urgent action to fix the problem. Working through partisan wrangling took until August 3, when a patchwork fix was passed on the eve of a Congressional recess.

In the interim, Sen. Bond told me in an interview last Friday, we had, “…gone about four months without being able to go after any new targets.” Now — because Pelosi blocked the vote and allowed the August fixes to expire — we’re back to where we were last April: unable to gather intelligence from new “targets.” It’s a license for bin Laden and his terrorists to communicate without fear of interception.

Nancy Pelosi and the most of the House Democrats are erasing the dots, not helping intelligence analysts to connect them. Last week Pelosi blocked a vote by which the House would have passed the bipartisan Senate version of the Foreign Intelligence Surveillance Act reforms legislation essential to fixing the problem created by the FISA court and keeping the National Security Agency’s terrorist surveillance program going. Pelosi did that despite a letter she received from most of the “Blue Dog” Democrats telling her they’d vote for the Senate bill. Added to Republican numbers, the Blue Dogs’ votes would have enabled Pelosi to pass the bill on a simple majority vote. 

Instead, she killed the effort, the House recessed and the August patchwork FISA legislation expired on Saturday.   

The House’s failure comes at a critical time. Imad Mugniyeh, one of the world’s most-wanted terrorists, was killed in Syria last week. His terrorist network, Iranian-backed Hizballah, has threatened revenge against the US and Israel, but NSA is left nearly blind to new intelligence targets. Pakistan — after the Bhutto assassination — is holding an election this week that al-Queda and the Taliban want to disrupt. And they may, without NSA interference.

And what of that SEAL platoon — maybe trying to capture or kill a high-value target or rescue a kidnapped US soldier — left waiting for six or eight hours, lacking critical information while someone writes a FISA warrant for a new intelligence target? House liberals don’t care. 

Cong. Pete Hoekstra (R-Mich.) — ranking Republican on the House Permanent Select Committee on Intelligence — focused on these threats while his Democratic counterparts were content to ignore them. Hoekstra told me, “So just as they are gearing up their planning as to how they’re going to retaliate, we are going blind. You throw in a few Danish cartoons, you throw in al-Quaeda in Iraq saying ‘we want to attack Israel,’ …and I would not have wanted going home yesterday afternoon after not having done anything.” 

Short-term extensions of the August fixes are no longer an option. As Senate Minority Leader Mitch McConnell (R-Ky) told me Friday, “For 6 months, the communications companies have been waiting for us to fix this retroactive liability problem. They have 40 lawsuits against them. They have fiduciary responsibilities to their shareholders, their CEO’s, to their board of directors, they can’t cooperate much longer. And what’s going to happen if we don’t get it fixed is the program is going to go away. Because these are not government employees, you can’t order them to do it.” 

McConnell added, “These are people who are volunteering to help. And as a result of the litigation morass, which has affected so many parts of our country, they are not going to be able to justify this much longer to their boards of directors or to their shareholders.”

The best explanation for Pelosi’s refusal to pass the Senate bill through the House is the Democrats’ craving for political donations from the trial lawyers. As Sen. McConnell told me, “It’s more important to [the Democrats] for these companies to be in court, thereby enriching their plaintiff lawyer buddies, than for these terrorists to be in jail.”

So while Usama bin Laden figures out how to use his new iPhone, Congress is vacationing. They have time to do that, but not to correct what the FISA court broke, and protect the telecom companies — and their employees — from the 40 or so lawsuits brought against them for helping NSA gather intelligence.

HPSCI Chairman Silvestre Reyes (D-Tex.) was at a Clinton fundraiser last week when the FISA bills were being considered in the House. According to a House source Reyes miscounted the votes and assured Pelosi and House Majority Leader Steny Hoyer (D-Md) that the short-term extension offered last week would pass. Reyes was surprised when some House Dems voted with Republicans to defeat it. 

Incompetent Democratic leadership coupled with their attitude toward national security may prove a deadly combination for Americans at home and our soldiers abroad.

The Democrats are saying that they didn’t have enough time to act. Since last April? Sen. Bond pointed out that, “The House spent the past week investigating baseball players…If only al-Queda were on steroids, perhaps the House leadership would be more interested in acting on FISA.” 


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