Over the past several months, the Senate and House of Representatives have been at odds over legislation to amend the Foreign Intelligence Surveillance Act, the law that provides a legal framework for how the United States collects data abroad. Before Congress went on its Easter recess, it had two very different pieces of FISA legislation. Sadly, due to the course taken by one of the chambers, a solution to this disagreement remains out of reach.
Under the Constitution, the Senate and House have equal roles in drafting and passing our nation's laws. However, after an objective examination of the two competing FISA bills, it is clear that not all legislation is created equal.
The Senate's FISA bill was drafted in consultation with the director of national intelligence and the attorney general. The original text of the bill was made public last October; since then, it has been available for everyone in the world to read, including members of the House of Representatives. First approved by the Senate Intelligence Committee, the bill was passed by a supermajority bipartisan vote of 68-29 after weeks of debate. It also has the support of a bipartisan majority of House members.
Conversely, the most recent House FISA bill, drafted by select members of the House Democratic leadership, was unveiled less than two days before the vote on final passage. Unlike the Senate bill, it was not a collaborative process with our intelligence and law enforcement communities. Not surprisingly, the abbreviated, partisan process employed by House Democratic leaders led to a number of substantive deficiencies in their bill. For the first time in our nation's history, the House bill would require prior court approval of procedures used to target foreign terrorists overseas.
At a time when our intelligence community needs speed and agility, the House bill imposes unreasonable obstacles that will only slow this pursuit. Before 9/11, most would have found these requirements to be absurd, almost laughable. No one could imagine giving foreign terrorists such judicial or statutory protections. Yet that is exactly what House Democratic leaders have done. Rather than give the intelligence community the tools it needs to protect us, they have chosen to heighten the protections given to foreign terrorists.
This is preposterous.
The Senate bill, on the other hand, allows the intelligence community to conduct warrantless surveillance on foreign targets while safeguarding the constitutional rights of American citizens. Democrats have often couched the FISA debate as one between security and liberty, as if the two were mutually exclusive. The bipartisan Senate FISA bill ensures that we have both.
Unfortunately, the real debate appears to be about protecting certain frivolous lawsuits and trial lawyers. The Senate, on a strong bipartisan basis, determined that those telecommunication companies that assisted the government with the Terrorist Surveillance Program should receive civil liability protection from lawsuits. Had the Democrats in the House bothered to consult with the intelligence community, they would have learned that voluntary cooperation by private partners is essential to intelligence collection. They would have found that, without retroactive liability protection, it becomes increasingly likely that these companies will simply refuse to cooperate.It seems safe to say that the partisans in the House did consult with some outside "experts" on this issue: the trial lawyers. It should come as no surprise that the Democrats want these suits to continue, even though there is no evidence that anyone was harmed by the program or that any laws were broken. The House Democratic leadership has chosen to politicize national security during this time of war. While the attorney general and the director of national intelligence support the Senate's bill, they have unequivocally opposed the House bill. According to House Democratic leaders, we should ignore the warnings of the experts and defer to the judgment of politicians in this election year. Clearly, they've given the American people every reason to question both their judgment and their priorities.
Orrin Hatch is Utah's senior senator.