The initial focus of this week’s National Threat Assessment addresses the permanent extension of The Protect America Act (PAA), which, among other issues, allows private companies to be retroactively shielded from liability based on their past cooperation with the Intelligence Community (IC). It removes legal liability from companies that own the lines and interconnect infrastructure that the IC must access for surveillance of potential threats.  It also removes and invalidates the potential for the types of law suits we have seen recently that demand, in legal discovery, the exposure of classified materials based on nothing more substantial than the suspicion of the plaintiff that he or she may have been the target of illegal surveillance.  

There is a simple strategy in place for the tin foil hat crowd that sees a bogeyman under the bed. Contend that you have been the target of illegal wire taps, file suit and force the telecom companies to defend themselves. Filing a lawsuit does not require a standard of probability, nor does it require proof, only a complaint, a contention and a lawyer. For the House to be more concerned with spurious lawsuits than national security is, to understate the situation, unfortunate. It is also telling.

Should this liability limitation not be permanently extended cooperation of private communications companies will come to a halt and remaining provisions of the law rendered ineffective. Mr. McConnell estimates that by the time the eventual sunset provision of the PAA comes to pass, as much as a 75% reduction of capabilities could occur. 

House resistance to the retroactive provisions are stalling the bill. Congressman Jerrold Nadler (D, NY) is an apt spokesman for the resistance. He contends that current lawsuits should be allowed to progress in the courts, that it’s not Congress’s job to interfere. He remains concerned about the lack of accountability and “control”. OK, defensible positions, however the key to the underlying motivation for the resistance is not the role of the courts or accountability. The telling aspect of the resistance is in the rhetoric. Mr. Nadler during his extensive interview with CSPAN yesterday repeatedly, in reference to President Bush, uses words such as Dictator and Monarch. He refers to “Congressional Power” but rarely to national security.

It’s not about the bill and spurious law suits for Mr. Nadler it is a continuation of the Congressional food fight with the White House. It’s about who takes the fall should something happen as a result of diminished intelligence capabilities. Speaker Pelosi says it’s the President because he won’t back off the retroactive liability protection and that it is all about protecting telecom companies. Speaker Pelosi and her 20% approval rating says that the President is more concerned with the telecom companies than national security.

Rubbish! It’s about not putting those companies in a position of caving in to lawsuits because the government will, eventually, refuse to expose intelligence information in support of actual surveillance. It’s about prior good faith cooperation that was and is critical to our ability to identify and preempt threats.

Wait a minute. It’s also the fault of the Senate, which passed out a bill this week. House leaders are upset that the Senate went about their own way of passing out a bill and that there is no time to reconcile the two versions. Nevertheless, facts can be a difficult thing to overcome. The bill passed out of The Senate this week is nearly identical to the committee mark up that has been in place and available to The House for six months! The House has long known what was going to come out of the Senate and could have gone to a conference committee long ago.          

The fact that congress has been fooling around with the extension of the PAA for six months, despite uniform support from the IC and two years of testimony is exceptionally difficult to comprehend. In fact, two years of testimony was insufficient as Mr. McConnell was called before the Senate Intelligence Committee again yesterday to, essentially, repeat prior testimony.  

The NTA addresses the growing use of the internet by Radical terror groups. To render our ability to survey them useless is incomprehensible. The NTA further focuses on the current risks related to Cyber-Security. One can surmise that the ability to install protective systems at the point of interconnect is an unstated goal and will require not only the cooperation of private companies but also their ability to innovate. The NTA specifically identifies that “Over the past year cyber exploitation activity has grown more sophisticated, more targeted, and more serious. The IC expects these trends to continue in the coming year”.  The report goes on “We must take proactive measures to detect and prevent intrusions from whatever source, as they happen, and before they can do significant damage.” This statement alludes to the potential for the ability to do so. So in that context, we should leave critical telecom companies dangling on the long end of the legal rope?

Two specifically highlighted threats should demand our attention. The first is the growth in homegrown, Islamist orientated terror cells. The NTA states that the sophistication of these groups is, currently, weak. However, the report also highlights the growing number of Islamists web sites being generated in English, and the growing ability of terrorist planners to transmit information and direction to surrogates anywhere in the world. We have seen the impact of homegrown terrorism in London and Madrid, should we actually facilitate it here by eliminating our ability to identify the threats? 

The fact is, that by not approving the liability provisions of the PAA we emasculate our ability to generate real time intelligence related to the use of the internet and phone lines that are not generated in the U.S. but have to connect through the U.S. The fact that our technology and telecom companies have positioned us as an indispensable feature of the global communications system is an exceptionally valuable position to hold. To render this capability mute is an egregious example of politics being a more significant concern than security and one more step down the road of “democracy as a mutual suicide pact”.