FISA, Part I

By U.S. Senator Jon Kyl When Congress returns to work this year, one of the first items on its agenda will be a bill to amend the Foreign Intelligence Surveillance Act (FISA). FISA, which was first enacted in 1978, created a court to oversee collection of foreign intelligence. The law was first amended after 9-11 to tear down the wall between criminal and intelligence investigations, and again in 2007 under the Protect America Act (PAA), to conform the legal procedures to the evolving technology of intelligence collection. The PAA, however, is set to expire in early February, so it must be reauthorized. The reason why the United States needs a permanent FISA law with the new provisions of the PAA is straightforward: the law must keep pace with technology. We are now able to collect intelligence in ways that were never understood or contemplated 30 years ago when the FISA law was first drafted. As a result, before Congress changed the law last year, U.S. intelligence agencies had lost about two thirds of their ability to collect communications intelligence against al Qaeda. Obviously, in this war, we cannot cede two-thirds of the battlefield to the terrorists. The collection of this information as a result of the PAA is critical to our nations security. In a December New York Times op-ed, Director of National Intelligence Michael McConnell noted that [i]nformation obtained under this law has helped us develop a greater understanding of international al Qaeda networks, and the law has allowed us to obtain significant insight into terrorist planning. Similarly, in October, Kenneth Wainstein, the Assistant Attorney General in charge of the Justice Departments National Security Division, testified before the Senate Judiciary Committee that since the passage of the [Protect America] Act, the Intelligence Community has collected critical intelligence important to preventing terrorist actions and enhancing our national security. Al Qaeda still desires to carry out the same kinds of attacks against the United States and other countries that it executed on September 11, 2001. We know the incredible amount of damage that can be inflicted if we do not monitor and respond to this threat. We also know that the best way to deal with al Qaeda and other terrorist organizations is to collect intelligence so that we can prevent attacks from occurring in the first place, rather than having to respond after they have occurred. That is why it is critical for Congress to ensure that under the law, the United States can engage in the kind of intelligence collection against al Qaeda that technology today allows. Everyone in Congress agrees that there should be stringent congressional oversight of these intelligence-collection programs; and all agree that we need oversight of the intelligence agencies. That is why this Congress and previous Congresses have agreed on a bipartisan basis to create robust oversight of U.S. intelligence gathering, even when such intelligence gathering is directed at foreign targets. The agencies executing wiretaps and conducting other surveillance must report their activities to Congress so that opportunities for domestic political abuse of these authorities are eliminated. Congress can and will write the law to ensure the protection of every U.S. person against surveillance abuses. But we should not restrict our intelligence agencies from collecting the available and accessible intelligence that might warn us of another terrorist attack. In my next column, I will discuss the two proposals the Senate will consider in January. Stay tuned¦