Scare Tactics and Our Surveillance Bill

By Jay Rockefeller, Patrick Leahy, Silvestre Reyes and John Conyers
Monday, February 25, 2008

Nothing is more important to the American people than our safety and our freedom. As the chairmen of the House and Senate intelligence and judiciary committees, we have an enormous responsibility to protect both.

Unfortunately, instead of working with Congress to achieve the best policies to keep our country safe, once again President Bush has resorted to scare tactics and political games.

In November, the House passed legislation to give U.S. intelligence agencies strong tools to intercept terrorist communications that transit the United States, while ensuring that Americans' private communications are not swept up by the government in violation of the Fourth Amendment.

Almost two weeks ago, the Senate passed similar legislation. The Senate bill also contains a provision to grant retroactive legal immunity to telecommunications companies that assisted the executive branch in conducting surveillance programs after the Sept. 11, 2001, attacks.

While the four of us may have our differences on what language a final bill should contain, we agree on several points.

First, our country did not "go dark" on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush's overheated rhetoric on this issue, the government's orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately.

As Assistant Attorney General Kenneth Wainstein acknowledged while speaking to reporters on Feb. 14, "the directives are in force for a year, and with the expiration of the PAA, the directives that are in force remain in force until the end of that year. . . . [W]e'll be able to continue doing surveillance based on those directives."

If President Bush truly believed that the expiration of the Protect America Act caused a danger, he would not have refused our offer of an extension.

In the remote possibility that a terrorist organization that we have never previously identified emerges, the National Security Agency could use existing authority under the Foreign Intelligence Surveillance Act (FISA) to track its communications. Since Congress passed FISA in 1978, the court governing the law's use has approved nearly 23,000 warrant applications and rejected only five. In an emergency, the NSA or FBI can begin surveillance immediately and a FISA court order does not have to be obtained for three days.

When U.S. agencies provided critical intelligence to our German allies to disrupt a terrorist plot last summer, we relied on FISA authorities.

Those who say that FISA is outdated do not appreciate the strength of this powerful tool.

So what's behind the president's "sky is falling" rhetoric?

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