AG Mukasey Pens Op-Ed on FISA (+Open Thread)
By SusanUnPC on December 12, 2007 at 1:51 PM in Counterterrorism, FISA
Michael Mukasey, the recently confirmed attorney general, wrote “A FISA fix,” an op-ed for today’s Los Angeles Times. It’s worth reading in full, but includes these troubling statements:
… Until recently, our surveillance efforts were hampered by the unintended consequences of an outdated law, the Foreign Intelligence Surveillance Act, … [...]
[The Senate Intelligence Committee's bill] would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful.
It is unfair to force such companies to face the possibility of massive judgments and litigation costs, and allowing these lawsuits to proceed also risks disclosure of our country’s intelligence capabilities to our enemies. Moreover, in the future we will need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.
The bill that came out of the Senate Intelligence Committee was carefully crafted and is a good starting point for legislation. Unfortunately, there are two other versions of the bill being considered that do not accomplish the two key objectives. The House of Representatives recently passed a version that would significantly weaken the Protect America Act by, among other things, requiring individual court orders to target people overseas in order to acquire certain types of foreign intelligence information. Similarly, the Senate Judiciary Committee made significant amendments to the Senate Intelligence Committee’s bill that would have the collective effect of weakening the government’s ability to effectively surveil intelligence targets abroad.
Moreover, neither the House bill nor the Senate Judiciary Committee’s version addresses protection for companies that face massive liability. Both the Senate Judiciary Committee amendments and the House bill passed largely on party lines, and the full Senate will be debating this issue shortly.
Congress must choose how to correct critical shortcomings in our foreign intelligence surveillance laws. It is a time for urgency: The Protect America Act expires in just two months, and we cannot afford to allow dangerous gaps in our intelligence capabilities to reopen. But this is also a time of opportunity, when we can set aside political differences to develop a long-term, bipartisan solution to widely recognized deficiencies in our national security laws. When Congress returns to this challenge, it should continue on the course charted by the Senate Intelligence Committee.
From “A FISA fix,” an op-ed for today’s Los Angeles Times by Attorney General Michael Mukasey.
by Ronald Scott
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