Congress must fix foreign surveillance laws

December 16, 2007|By Michael B. Mukasey

One of the most critical matters facing Congress is the need to enact long-term legislation updating our nation's foreign intelligence surveillance laws. Intercepting the communications of terrorists and other intelligence targets has given us crucial insights into the intentions of our adversaries and has helped us to detect and prevent terrorist attacks.

Until recently, our surveillance efforts were hampered by the unintended consequences of an outdated law, the Foreign Intelligence Surveillance Act, which was enacted in 1978 to establish a system of judicial approval for certain intelligence surveillance activities in the U.S.

The requirement that a judge issue an order before communications can be intercepted serves important purposes when the target of the surveillance is a person in our country, where constitutional privacy interests are most significant. The problem, however, was that FISA increasingly had come to apply to the interception of communications of terrorists and other intelligence targets located overseas.

In FISA, Congress had embedded the crucial distinction between whether targets are inside or outside our country, but it did so using terms based on the technology as it existed then. However, revolutionary changes in communications technology in the intervening years have resulted in FISA's applying more frequently to surveillance directed at targets overseas. The increased volume of applications for judicial orders under FISA impaired our ability to collect critical intelligence, with little if any corresponding benefit to the privacy of people in the United States.

This summer, Congress responded by passing the Protect America Act. It authorized intelligence agencies to conduct surveillance targeting people overseas without court approval, but it retained FISA's requirement that a court order be obtained to conduct electronic surveillance directed at people in the U.S. The new law closed dangerous gaps that had developed in our intelligence collection. Congress, however, set it to expire Feb. 1.

It is vital that Congress put surveillance of terrorists and other overseas intelligence targets on surer institutional footing. The Senate Intelligence Committee has crafted a bill that would largely accomplish that objective. The bill was approved by an overwhelming, and bipartisan, 13-2 vote.

The Senate Intelligence Committee's bill is not perfect, and it contains provisions that I hope will be improved. However, it would achieve two important objectives. First, it would keep the intelligence gaps closed by ensuring that individual court orders are not required to direct surveillance at foreign targets overseas. Second, it would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks.

The bill that came out of the Senate Intelligence Committee was carefully crafted and is a good starting point for legislation. Unfortunately, there are two other versions of the bill being considered that do not accomplish the two key objectives. The House of Representatives recently passed a version that would significantly weaken the Protect America Act by, among other things, requiring individual court orders to target people overseas in order to acquire certain types of foreign intelligence information. Similarly, the Senate Judiciary Committee made significant amendments to the Senate Intelligence Committee's bill that would have the collective effect of weakening the government's ability to effectively surveil intelligence targets abroad. Moreover, neither the House bill nor the Senate Judiciary Committee's version addresses protection for companies that face massive liability.

The full Senate will be debating this issue shortly. Congress must choose how to correct critical shortcomings in our foreign intelligence surveillance laws. The Protect America Act expires in less than two months, and we cannot afford to allow dangerous gaps in our intelligence capabilities to reopen.

We can set aside political differences to develop a long-term, bipartisan solution to widely recognized deficiencies in our national security laws. When Congress returns to this challenge, it should continue on the course charted by the Senate Intelligence Committee.

Michael B. Mukasey is the U.S. attorney general. This article originally appeared in the Los Angeles Times.

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