Publisher's Note: Senator Bond submitted this OpEd to the New York Times and The Washington Post. Both of these liberal, east coast newspapers refused to print it. You can read it here. Today’s terrorists take full advantage of technology to stay one step ahead of law enforcement and intelligence services. Our laws, including the Foreign Intelligence Surveillance Act (FISA), predate many of the technologies we all take for granted today. Until Congress updated the FISA law last week by passing the Protect America Act, we were unable to conduct critical surveillance of foreign terrorists planning to conduct attacks inside the United States.
Despite misinformation in the media, this legislation does not direct electronic surveillance at American citizens domestically or overseas. The Protect America Act does authorize our intelligence agencies to target the communications of persons reasonably believed to be outside the United States. It is possible that this terrorist surveillance may include the incidental communications of innocent Americans who unknowingly contact presumed terrorists overseas, which is why our bill provides critical protection to these Americans.
The Protect America Act ensures that our law enforcement and intelligence operators are prevented from abusing the rights of Americans communicating with friends, family or colleagues overseas. In fact, unless an American is colluding with terrorists, procedures required by the law ensure that the contents of their communications must be discarded. Any communication from an American can only be kept if it contains foreign intelligence information, such as communications about terrorist activities.
It is important to note that before any American can be targeted for electronic surveillance within the United States, the law requires the government to seek a court order from the Foreign Intelligence Surveillance Court. If a U.S. citizen overseas is to be targeted the Attorney General must authorize the surveillance based on probable cause that the target is an agent of a foreign power, like a spy or terrorist. This is the system our intelligence agencies have been using since FISA was passed in 1978. The Protect America Act merely allows our intelligence agencies to apply this same system to other communications technologies.
It is clear that critics of this important law do not understand that the exclusion of “foreign-to-foreign” communications contained in some of the alternate Congressional proposals offered late last week would not provide our law enforcement and intelligence agencies with the tools they need. It is often impossible to know whom a terrorist in Afghanistan may be calling until the call is connected!
Some have suggested that the Foreign Intelligence Surveillance Court is a more appropriate place for this surveillance. However, as it became clear last week, the judges of the Foreign Intelligence Surveillance Court strongly support changes to the old terrorist surveillance law. The judges expressed frustration with the fact that so much of their time and caseload is consumed by applications that focus on foreign targets and do not involve privacy interests of Americans.
Congress takes its duty of oversight seriously. Members on both sides of the aisle will not allow this or any future administration use this terrorist surveillance law to run roughshod over Americans’ civil liberties. We will continue to conduct oversight on this anti-terrorism program, just like we have done since the first FISA law was passed in 1978. The Protect America Act contains important reporting requirements and a six-month sunset, which will require Congress and the administration to sit down and revisit these same issues in the very near term.
As Congress oversees the implementation of this important law, much of the warrantless confusion initiated by some our colleagues and the media will be cleared up, and we can move ahead with more comprehensive FISA modernization legislation this fall.
America remains under serious threat of attack by al-Qaeda and other terrorist organizations. We would be remiss not to give our law enforcement and intelligence operators the tools they need to stay ahead of the threat.
U.S. Senator Kit Bond
Vice Chairman of the Senate Intelligence Committee
