This week, House Democrat leaders face a choice. They can adjourn for another two week break without passing terrorist surveillance legislation critical to keeping America safe. Or they can be responsible, and approve these updates to the Foreign Intelligence Surveillance Act (FISA).
The Senate has passed this legislation with an overwhelming bipartisan majority. But the House insists on dithering and playing political games instead of removing burdensome and unnecessary legal restrictions to U.S. intelligence gathering.
At one point during the debate, Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., who helped pass the Senate version, declared that without these measures our intelligence will be "degraded." Similarly, the Director of National Intelligence said without this legislation, we lack the necessary tools to intercept communications between foreign nationals.
An incident last May clearly demonstrates the importance of this legislation. Three U.S. troops were kidnapped in Iraq, south of Baghdad, by al Qaeda terrorists. The U.S. military immediately launched a search and rescue operation.
Within hours, a new source of information was discovered that required electronic surveillance of phone conversations. Then, a maze of complicated U.S. laws kicked in, stopping progress on the new lead for nearly 10 long hours.
Weeks later, the body of one missing American was found in the Euphrates River. The terrorists claimed the other two had been executed. No one knows whether they would have been found if the intelligence lead had been immediately followed.
Restrictions in an outdated federal law greatly hampered rescue efforts while government lawyers back in the U.S. sorted through a legal quagmire to develop “probable cause” for electronic surveillance. Cpl. Ryan Collins of Vernon, Texas was killed while participating in the unsuccessful attempt to find the missing troops.
We all agree that laws must be followed. Our American soldiers did that in Iraq. It’s also clear, however, that existing law can prevent immediate use of our latest and best intelligence-gathering technology, when quick action is critical to the lives of Americans. When this is the case, it’s up to Congress to change the law.
At the time of this Iraq incident, electronic surveillance for intelligence and military use was subject to the 1978 FISA law. Last year, Congress approved a temporary update—the Protect America Act. In early February, a bipartisan majority of the Senate voted to extend key parts of the Protect America Act for six years.
But instead of approving the Senate bill, House leaders left for a 10-day recess. So the Protect America Act expired on Feb. 16. Now our troops and intelligence community are again operating under legal constraints that delay tracking terrorists who use Internet and cell phone devices that did not exist when FISA was enacted.
Some 98 percent of America’s electronic technology is owned by private companies, and their cooperation is essential in preventing terrorist attacks. But trial lawyers have filed lawsuits seeking billions of dollars from telecommunications firms that have helped our government stop another 9/11.
The Senate-passed bill provides protection against lawsuits for firms acting in good faith on government requests for help. This lawsuit protection is necessary to make certain they can protect their shareholders from legal expense even while they do their part to keep Americans safe.
Currently, we are asking our troops and intelligence professionals to operate with one hand tied behind their back. Good intelligence helps protect our troops and win wars. Undercutting it reduces our ability to defend ourselves, and endangers the lives of Americans.
Our nation is grateful to Cpl. Ryan Collins, his family and the sacrifices of those who help protect our country. We must work to ensure our intelligence community and security forces have every tool available to keep us safe. We owe that to our citizens, and to the memory of Cpl. Collins.
We are less safe than we were before Feb. 16. If the House fails to act yet again, one is forced to ask: Do House Democrat leaders take the threat of terrorism seriously? Or is playing to their left-wing base more important to them than protecting our troops and citizens?
U.S. Sen. John Cornyn, R-Texas, is a member of the Senate Armed Services and Judiciary Committees, and Vice Chairman of the Senate Republican Conference.