In the wake of 9/11, our antiquated laws on enemy combatant detention and foreign surveillance were exposed. Designed to regulate state-on-state action, our laws did not adequately address the detention of the enemy during wartime. Not until the Detainee Treatment Act of 2005 did Congress adequately fill in the gaps in our detainee treatment law.
Similarly, on 9/11 the Foreign Intelligence Surveillance Act was hopelessly out of date and technical violations of it were required in order for our intelligence agencies to adequately track foreign-to-foreign communications that passed through U.S. telecommunications infrastructure. Congress finally updated FISA last year to fix these technical problems, but it did so on only a temporary basis and refused to protect the telecommunication companies that relied on federal government assurances that there cooperation was necessary and legal.
In a perfect world, Congress would have moved faster to bring our detention and surveillance laws up to date. But lawmakers didn’t. The Pentagon’s recent charges against six detainees for their involvement in 9/11 shows that the administration is eager to work with in the law.
The House is threatening to allow the necessary temporary FISA reforms to lapse. They have had 193 days to debate FISA reform and now they have the audacity to ask for another 21. More temporary extensions just aren’t good enough. It puts intelligence-gatherers in an impossible situation: They must try to guess what sort of legislation Congress will pass, and act accordingly. If they guess incorrectly, they’ll have wasted hundreds of hours of work per warrant application and potentially delay investigations by weeks or months.
Campaign contribution data reveal that those opposing protection for telecommunications companies received $1.5 million from the trial lawyers that are seeking to cash in law suits based on possible post-9/11 technical violations of FISA. A bipartisan coalition of senators passed FISA legislation that protects these cooperating companies. A bipartisan coalition, which includes 21 Blue Dog Democrats, wants to pass similar legislation in the House. Political gamesmanship is no way to protect our country. The House needs to step up to the plate and pass FISA reform so we can defend our country within the rule of law.