“John Doe” telecoms

We interrupt this congressional recess to bring you an announcement:  While the House of Representatives is vacationing this week, terrorists are probably communicating about plots to kill Americans without fear that their plans will be intercepted by U.S. intelligence. 

If one or more of those mortal plots are, as a result, successfully executed, we won’t need an independent 9/11-style commission to assign blame.  The buck will stop squarely at the desk of Speaker Nancy Pelosi who refused to allow a vote on a permanent renewal of the Protect America Act (PAA).

[More]That legislation provides, in effect, authority for the Commander-in-Chief to monitor our adversaries’ battlefield communications – something successive Presidents have routinely done since the founding of the republic.  Unfortunately, in the current, ongoing War for the Free World, the battlefield is global and the enemy’s signals are conveyed by a bewildering array of media not anticipated back in 1978 when Congress first imposed significant, but relatively modest restrictions on how and when American signals intercepts could take place.

To be clear, I believe such authority is inherent in the President’s powers under our Constitution.  Unfortunately, a federal court found otherwise last year.  This led first to a mad scramble to enact the Protect America Act in Fall 2007 and then, as that temporary, six-month legislation was ready to expire last weekend, to a continuing test of wills between the Democratic House leadership and President Bush.  Incredibly, the House left town without scheduling a vote to reenact the PAA on a permanent basis.

Prominent among the stated justifications for this dereliction of duty by the House of Representatives is the fact that the Senate version of the reenactment of the PAA – which was passed recently with broad bipartisan support – included a provision anathema to the lower chamber’s Democratic leadership: It offered immunity from litigation for private telecommunications companies whose help in collecting signals intelligence was indispensable in the wake of the 9/11 attacks.

Sadly, this dereliction is not an isolated incident.  In 2007, the Council on American-Islamic Relations (CAIR) – an organization identified by the Justice Department as a Muslim Brotherhood front organization and an un-indicted co-conspirator in a terrorism financing case – threatened to sue several individuals identified to date only as "John Does."  These Americans responded, as did the telecoms, to a request for help by their government.  They reported worrisome and provocative behavior on the part of a group of "Flying Imams" prior to a flight from Minneapolis to Arizona in 2006. 

Congress and the public reacted vociferously when word got out concerning CAIR’s threats to those who fulfilled the oft-stated request by law-enforcement agencies across America to the effect that, "If you see something, say something."  Within days, it became clear that substantial majorities in both the House and Senate favored relief for the John Does.

Then as now, though, Nancy Pelosi and other, like-minded House leaders used their positions to try to prevent enactment of the needed legislation.  In the case of the John Does, however, the outcry to protect the country and those who heed official appeals for help toward that end became simply irresistible.  At the instigation of Reps. Peter King and Pete Hoekstra and Sens. Joe Lieberman and Jon Kyl, the obstructionists were forced to allow a vote that overwhelmingly repudiated the nay-sayers.

Speaker Pelosi has evidently learned nothing in the intervening months about either the national security implications or the politics of obstructionism in the service of trial lawyers and at the expense of the common defense.  All other things being equal, it seems likely that she will be rolled once again when Congress reconvenes in another week. 

After all, as the Director of National Intelligence, Vice Admiral Mike McConnell observed on the Fox Sunday Morning program last weekend: "We cannot do this mission without help and support from the private sector….[I]f you think about the private sector global communications, many people think the government operates that.  Ninety-eight percent of it is owned and operated by the private sector."   Therefore, cooperation of the telecoms with U.S. intelligence is not simply nice to have; it is essential.

The problem is that, even if Mrs. Pelosi is forced to relent relatively soon, our intelligence agencies’ "situational awareness" of terrorist activities may suffer lasting harm.  As Andrew McCarthy, one of the prosecutors in the trials regarding the first attack on the World Trade Center in 1993, put it in a recent blog posting at National Review Online:

"…Every day we don’t fix this problem, the problem – the investigative leads you don’t get, the connections you don’t make, the things you don’t learn but which you should know – metastasizes.  Intelligence is dynamic:  you can’t stop collecting for a day, a week, a month or more and then figure you are picking up right where you left off.  What you have lost tends to stay lost."

America can ill afford in time of war for the House Speaker to play games with legislation designed to ensure that patriots – be they individual John Does, telecommunications companies or other corporations – are not penalized for doing their civic duty.  We can only pray that, by the time she gets around to doing hers, our enemies have not advanced undetected the plots that will put still more of us at risk.