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State of the Union 2008

Giving Our National Security Professionals Tools They Need To Protect America
Congress Must Act Now To Ensure That The Intelligence Community Can Continue To Monitor Terrorist Communications Quickly And Effectively And To Provide Meaningful Liability Protection To Telecommunications Companies

Tonight, President Bush will call on Congress to help keep our Nation safe by acting now to pass legislation that will ensure that the Intelligence Community can continue to monitor terrorist communications quickly and effectively.   Last August, Congress passed the Protect America Act (PAA) to modernize the Foreign Intelligence Surveillance Act of 1978 (FISA) and provide our intelligence community essential tools to acquire important information about terrorists who want to harm America.  The PAA restored FISA to its original focus of protecting the rights of persons in the United States, while not acting as an obstacle to gathering foreign intelligence on targets located in foreign countries. 

  • The PAA temporarily closed a critical intelligence gap that was making our Nation less safe, but this important legislation expires on February 1.  If Congress does not act quickly, our national security professionals will not be able to count on critical tools they need to protect our Nation, and our ability to respond quickly to new threats and circumstances will be weakened.  That means it will become harder to figure out what our enemies are doing to recruit terrorists and infiltrate them into our country.  

  • Congress must act now to ensure the flow of vital intelligence is not disrupted and to pass liability protection for companies believed to have assisted in the efforts to defend America following the 9/11 attacks.

Liability Protection Is Critical To The Ongoing Effort To Protect The Nation From Another Catastrophic Attack

The Senate Intelligence Committee carefully studied this issue and found that without responsible retroactive liability protection, "the private sector might be unwilling to cooperate with lawful government requests."  The Committee rightly determined that this lack of protection could result in a "possible reduction in intelligence" that is "unacceptable for the safety of our Nation."

Companies should not be threatened with billion-dollar lawsuits by plaintiffs' lawyers for accepting the government's determination that requested assistance was necessary and lawful. Requiring companies to second-guess the government's determinations would slow or eliminate critical intelligence collection and would place private parties in the impossible position of making legal determinations without access to the classified facts necessary to make such determinations.  It is also fundamentally unfair to subject these companies, and their thousands of employees and shareholders, to the possibility of multi-billion dollar payouts to plaintiffs' lawyers only because the companies are believed to have helped in efforts to defend our Nation following the 9/11 attacks.

Companies alleged to have assisted the government in the aftermath of September 11th should not face massive and costly litigation for helping protect our country.  Such litigation also risks the disclosure of highly classified information.

Failing to provide retroactive liability protection sends the wrong message to every private party that may in the future consider whether to help the Nation.

The Basics Of FISA: Why Legislation Is Necessary To Bring The Law Up-To-Date

Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 to regulate the Government's efforts to conduct certain foreign intelligence surveillance activities directed at persons in the United States.  Congress recognized that the Government must be able to effectively collect foreign intelligence about those who wish to harm our country.  To allow this collection to proceed while protecting the rights of Americans in the United States, Congress established a process for judicial approval that generally applied when the government targeted persons located inside the United States for foreign intelligence surveillance – but which generally did not apply to activities directed at persons overseas. 

Revolutionary advances in telecommunications technology since 1978 upset the careful balance established by Congress to distinguish between surveillance governed by FISA and surveillance directed at targets outside the U.S.  The mechanism Congress used to identify which activities fell within FISA's scope – and to strike the balance between surveillance directed at persons overseas and persons in the United States – was a careful and complex definition of the term "electronic surveillance."  This definition was framed in terms of the specific communications technologies used in 1978.

Technology changed dramatically over the course of the next decades, and as a result, prior to the Protect America Act, the Government often needed to obtain a court order before vital intelligence collection could begin against a terrorist or other foreign intelligence target located in a foreign country.  These targets often were communicating with other foreign persons overseas, but FISA's court order requirement still applied.  It made no sense to require the Government to obtain a court order to collect foreign intelligence on targets located in foreign countries – nor was such a requirement generally intended when Congress passed FISA nearly 30 years ago.

This requirement resulted in a critical intelligence gap that was making our Nation less safe.  Requiring the Government to go to court before the collection of foreign intelligence could begin resulted, as the Director of National Intelligence put it, in our intelligence professionals "missing a significant amount of foreign intelligence that we should be collecting to protect our country." 

By changing FISA's definition of electronic surveillance to clarify that the statute does not apply to surveillance directed at overseas targets, the Protect America Act has enabled the intelligence community to close this critical intelligence gap.  The Protect America Act makes clear – consistent with the intent of the Congress that enacted FISA in 1978 – that our intelligence community should not have to get bogged down in a court approval process to gather foreign intelligence on targets located in foreign countries.  It does not change the strong protections FISA provides to people in the United States.  FISA's definition of electronic surveillance remains unchanged for surveillance directed at people in the United States, and continues to require court approval as it did before.

The President calls on Congress to send him a bill he can sign before the Protect America Act expires on
February 1. 
The Senate is currently considering the Senate Intelligence Committee bill, which was crafted in a careful, bipartisan manner to protect our country against terrorists and other foreign threats while preserving the privacy of Americans.  While the bill needs some changes, it is a fundamentally sound piece of legislation.  It would maintain the vital flow of intelligence on terrorist threats, protect the freedoms of Americans while making sure we do not extend those same protections to terrorists overseas, and provide liability protection to companies now facing billion dollar lawsuits only because they are believed to have assisted in efforts to defend our Nation following the 9/11 attacks.  The President calls on Congressional leaders to follow the course set by their colleagues on the Senate Intelligence Committee, bring this legislation to a prompt vote in both houses.