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We Should Do What is Best to Protect America

October 22, 2007
Weekly Columns

In August Congress passed the bipartisan Protect America Act, a piece of legislation that has helped make America safer by closing a dangerous gap in our intelligence structure. That bill amended out-of-date intelligence laws while providing America's intelligence community the legal justification to pursue new ways to gather information and monitor the communications of foreign enemies. Even though this bill modernized the forty-year old Foreign Intelligence Surveillance Act (FISA), some of the advances it has made could be null and void if the RESTORE Act of 2007, which has been brought before Congress, becomes law.

The RESTORE Act of 2007 has been offered by the Democratic majority in the House as a "compromise." But the only compromise it offers is one to our national security. The first of its many flaws is that this bill fails to give liability protection to telephone companies and other communications industries that assist the government during emergency situations. For example, several communications carriers worked with our government after 9-11 to help track foreign terrorists using our communications system. Those organizations deserve our gratitude, not a flood of lawsuits from anxious trial lawyers chasing a pot of gold. These protections were recommended by the Director of National Intelligence and the RESTORE Act ignores them. The bipartisan Protect America Act, on the other hand, was crafted specifically around the Director's recommendations for FISA modernization. I believe that the Protect America Act is a better proposal for the security of our nation.

Also, the RESTORE Act proposal requires an extensive system of court order approvals that will ultimately slow down our ability to identify and capture our enemies. It would, for the first time, require a court order to obtain foreign electronic surveillance from overseas. But, the Protect America Act was passed in August specifically to state that a court order is not required for overseas targets. The RESTORE Act would also require a special FISA court order to obtain foreign communications of persons believed to be outside of the U.S. This would be a step backward because even the 1978 Foreign Intelligence Surveillance Act never required our government to acquire court orders for such communications. The RESTORE Act seems more like a terrorist bill of rights than a real solution to create a safer environment for our citizens at home and soldiers and officials overseas.

Rather than enacting this dangerous and defective alternative, Congress should move to make the bipartisan Protect America Act permanent. It expires in February - a deadline that is swiftly approaching. Having access to intelligence data is a critical issue that should not be compromised and hijacked by trial lawyers and the ACLU. The human cost that our nation could incur if the RESTORE Act passes is staggering. Instead, I believe it is time that we pass the best legislation for America and the Protect America Act meets that standard.