Progressives are in near hysterics over the possibility that the temporary changes to the Foreign Intelligence Surveillance Act made in August 2007 will be made permanent before they expire and that US companies that assisted US intelligence efforts before the temporary changes were made will receive protection from frivolous lawsuits.
In their more honest moments some progressives will admit that FISA needs “a single uncontroversial technical correction.” The way many of them gloss over the details of that correction and instead throw around provocative phrases like “warrantless eavesdropping powers” betray how unserious they are about national security. Passed in 1978 FISA required US intelligence agencies to obtain warrants to monitor communications through wire and cable since those calls were mostly domestic, but also allowed US intelligence to conduct needed warrantless surveillance on radio and satellite communications since most of the calls were international. Technology has since changed so that now most international to international communications run through wires and cables (think emails), many of which exist in the United States.
If US intelligence agencies were forced to follow pre-August 2007 FISA law, 100 government officials would have to work year round complying with FISA’s individual warrant requirements for the thousands of foreign to foreign communications they monitor. NSA General Counsel Robert Diaz told Congress: “My concern is analyst time. And the issue that most concerns us is counterterrorism experts and analysts do not grow on trees. And every time I’ve got five or 10 or 15 or 20 counterterrorsim experts working on FISA factual issues, that’s time when they’re not trying to stop the enemies of the United States.”
Congress has had since August 2007 to make the needed temporary changes permanent. The remaining issue hanging approval of a permanent change is the issue of immunity for the telecom companies that cooperated with the government before the changes were made. But responsible legal scholars agree that due to the state secrets privilege, all of these lawsuits will be thrown out anyway. The only people who benefit from punishing the cooperative companies are trial lawyers and politicians eager to score points at the telecoms expense. Congress has had five months to address this issue. Another month is not going to accomplish anything. They need to permanently update FISA now.