Scare Tactics And Our Surveillance Bill

By:  Senator Patrick Leahy

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?

It is clear that he and his Republican allies, desperate to distract attention from the economy and other policy failures, are trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack.

But if our nation were to suddenly become vulnerable, it would not be because we don't have sufficient domestic surveillance powers. It would be because the Bush administration has done too little to defeat al-Qaeda, which has reconstituted itself in Pakistan and gained strength throughout the world. Many of our intelligence assets are being used to fight in Iraq instead of taking on Osama bin Laden and the al-Qaeda organization that attacked us on Sept. 11 and that wants to attack us again.

The president may try to change the topic by talking about surveillance laws, but we aren't buying it.

We are motivated to pass legislation governing surveillance because we believe this activity must be carefully regulated to protect Americans' constitutional rights. Companies that provide lawful assistance to the government in surveillance activities should be legally protected for doing so.

We are already working to reconcile the House and Senate bills and hope that our Republican colleagues will join us in the coming weeks to craft final, bipartisan legislation. A key objective of our effort is to build support for a law that gives our intelligence professionals not only the tools they need but also confidence that the legislation they will be implementing has the broad support of Congress and the American public.

If the president thinks he can use this as a wedge issue to divide Democrats, he is wrong. We are united in our determination to produce responsible legislation that will protect America and protect our Constitution.

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Jay Rockefeller, Patrick Leahy, Silvestre Reyes and John Conyers are chairmen, respectively, of the Senate Select Committee on Intelligence, the Senate Judiciary Committee, the House Permanent Select Committee on Intelligence and the House Judiciary Committee.