The Protect America Act expired 2/16/08 at midnight.  Without this “arm” that exempted foreign communications from FISA’s restrictions, our Intelligence has to revert to using the same terror surveillance laws that failed to protect America from the al-Qaeda attack on 9/11.  But this time, all the blame rests on a few American heads.

On the prior Thursday to 2/16, the House purposely left Washington for a 12 day break, and allowed the expiration of the above legislation.  It’s a known fact that Osama bin Laden said in 1/06 that al-Qaeda [and other terrorist groups] would hit us again in our homeland.  Recently, NIE reported stepped-up activity by terrorists, but our intelligence doesn’t have all the tools they need for protection.  The old laws didn’t protect us on 9/11/01, but Congress believes they’ll protect us now?

One seems to forget what FISA stands for—Foreign Intelligence Surveillance Act. “Foreign” doesn’t stand for “Americans”. But another mass-casualty terrorist attack might be unavoidable for Congress, because it involves “nonviolations of the nonrights of nonAmericans” (Rich Lowry/ TownHall). FISA gave the government a way to monitor foreign communications and to act.  But it requires a warrant to do so.  The Protect America Act changed that--temporarily.

Many parlay the 4^th Amendment to the Constitution. The 4th is the right of all Americans to be unfettered by personal searches.  But it contains the oft forgotten word “unreasonable”.  If a terrorist is planning to kill Americans (e.g., your family) by radiation, water contamination, or even nuclear blast, such a search is not unreasonable by any means.  In fact, it is the government’s responsibility (Article 4) to protect each American against invasion.

Detractors have continually used the word ‘wiretap’, and charged that Homeland Security is illegally spying on Americans.  Do those detractors realize our citizenry has logged at least 200 billion minutes (Warner Houston Cable) in 2003 alone on international calls? It is physically impossible to listen to that many calls. 

Past practice with the Protect America Act had the government collecting phone numbers for harvesting and trend analysis.  Tony Snow (Press Secretary/Bush Administration) has stated “It only targets international phone calls into/out of the US where one of the parties…is an al-Qaeda or affiliated terrorist.” Those calls are possibly computer ‘earmarked’ as being used by potential terrorists.

Mike McConnel (Director of National Intelligence) indicated that our Intelligence yield dropped off by a catastrophic two-thirds.  The Wall Street Journal editorialized “This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror.” Evidently the Administration no longer can use “dots” to connect.

The Protect America Act had added two important additions to FISA:

1) The immediate ability to let NSA track foreign calls routed through the US.

2) Give telecom companies liability protection to guard them from lawsuits when they cooperate with intelligence agencies.

The Administration was already working covertly with Verizon, AT&T, and Bellsouth, but disputes of their cooperation with certain government requests have already resulted in over 40 multi-billion dollar lawsuits (Amanda Carpenter/TownHall).

Bottom line, we can continue to listen to overseas targets, but can’t pick up any new targets with FISA’s tedious restrictions—a severe hampering of our intelligence. In other words, get a court-order before anything can be done.

The consequences of this purposeful House inaction, is that Intelligence will not be able to begin new terrorist surveillance without dangerous delays. This is highly reminiscent of the US forces in Iraq (5/07) having to wait 10 hours before they could begin searching for three soldiers taken hostage by al-Qaeda. The wait was forced by lawyers in the US who were hammering out the proper documents to get emergency permission for wiretaps.  Later, one of our soldiers was found dead, the other two remain missing. But in actuality, it should take exactly zero hours to rescue our troops.

It’s highly remarkable Obama opposed the FISA arrangement, and even denounced the companies that have assisted the US Intelligence as “special interests”.  

Without a doubt, American people will now likely be killed on American soil. The terrorists will always be the main enemy, but now we have Americans to blame as well. And as Americans, they actually expect our vote.    

Kevin Roeten can be reached at roetenks@charter.net or kevin@kevinroeten.us.