Outside editorial: A dangerous spy caper

Posted: Tuesday, February 26, 2008

In recent days, authorities in Spain arrested several terror suspects, mostly Pakistanis, who allegedly planned a wave of attacks across Europe. American officials acknowledged that they had monitored some of the suspects' phone calls to Pakistan. Michael McConnell, director of national intelligence, pointed to the case as a reason that the U.S. must maintain its strong electronic surveillance capabilities.

Around the same time, Homeland Security chief Michael Chertoff underscored the terrorists' intent to attack America. "If you're asking me what keeps me up at night or what I most worry about ... the kinds of things I'm worried about are a nuclear or a dirty bomb attack or a nuclear or biological attack."

If there ever were a time when this nation sought to be certain its spy agencies were operating at peak efficiency, this is it. Actually, there isn't a time when we'd want anything less. But something less is what we have at the moment, thanks to the Democratic leaders of the U.S. House.

Last week, the House left on recess without voting to renew a crucial terrorist surveillance bill. What does that mean to America's spies? It won't immediately interrupt wiretapping cases against terror targets already approved. But it could prevent authorities from opening new cases under the expanded powers they've had since last August. Any new targets now will be forced to go through an earlier, more cumbersome standard.

Sen. Jay Rockefeller, the Democratic chairman of the Senate intelligence committee, outlined the stakes clearly: "What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded."

Congressional Democrats played a game of chicken with the White House over the strengthened surveillance law last summer. Back then, they blinked. They agreed to plug a huge gap in foreign surveillance - temporarily. That expanded the government's authority to eavesdrop - without a warrant - on international phone calls and other communications that pass through U.S. networks.

That law expired Feb. 15. All efforts to reach a deal failed. So here we are.

The key sticking point remains retroactive immunity for telecommunications companies that helped the government after the Sept. 11, 2001 attacks. The government asked these companies to help, arguing that national security was at stake. Now, lawsuits allege that those companies acted improperly by giving the government overly broad access to information. Many House Democrats oppose retroactive immunity, asserting that the companies must answer for their actions.

But last fall, the Senate Intelligence Committee concluded that the telecommunications companies "had a good-faith basis" in responding to the government's requests for help. As Rockefeller said: "What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this? They get $40 billion worth of suits, grief, trashing, but they do it. But they don't have to do it, because they do have shareholders to respond to, to answer to."

The Senate committee report warned that "without retroactive immunity, the private sector might be unwilling to cooperate with lawful government requests in the future without unnecessary court involvement and protracted litigation. The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation."

Mindful of that, the Senate recently passed the new law - by an overwhelming 68-29 vote - with the immunity provision intact. That's a loud, bipartisan message to the House: It is ludicrous to punish these companies for doing what they considered an effort to protect their nation.

Let's not play chicken with the nation's security. Pass the bill.

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