Dodd continues to undermine national security

Opinion Journal:

Senator Chris Dodd's Presidential campaign died with a whimper in Iowa. But he still seems to be dictating national security policy to fellow Democrats on Capitol Hill, and unless the Bush Administration is willing to fight, perhaps to the next President too.

We're told that Senate Majority Leader Harry Reid is saying privately he now won't attempt to update the 1978 Foreign Intelligence Surveillance Act (FISA) on the wiretapping of al Qaeda suspects. Instead, he'll merely support another 18-month extension of the six-month-old Protect America Act. Among other problems, the temporary bill includes no retroactive immunity for the telecom companies that cooperated with the feds after 9/11.

In October, the Senate Intelligence Committee passed a bill updating FISA on a bipartisan vote led by Democratic Chairman Jay Rockefeller. It would provide a Congressional blessing for warrantless wiretaps of suspected al Qaeda communications overseas that happen to pass through U.S. switching networks, as many do in a world of packet switching and fiber optics. The bill also gives retroactive immunity to the phone companies, which have been sued by the likes of the ACLU for hundreds of billions of dollars for the crime of answering a President's request for assistance.

Mr. Reid brought the bill to the Senate floor last month. But Senator Dodd rose to object to the immunity provision, among other things, and Mr. Reid pulled the plug. MoveOn.org took a victory lap. And now Mr. Reid seems to be further bending to the anti-antiterror left by trying to kick the issue past this year into what he hopes will be a Clinton or Obama Presidency.

The Bush Administration is aware of Mr. Reid's plans and is debating a response, and we hope Chief of Staff Josh Bolten and the President don't flinch now. Immunity for the telcos is not only fair but crucial. As the Senate Intelligence Committee concluded, these companies acted in response to written requests or directives assuring that their activities were authorized by the President. "The extension of immunity," wrote the panel in its conference report, "reflects the Committee's determination that electronic communication service providers acted on a good faith belief that the President's program, and their assistance, was lawful."

Protection from lawsuits also makes sense given the nature of the terrorist threat. There could well be another attack, or a future need for the private sector's help in preventing one. If a phone company or airline or bank is worried about Senator Dodd and the tort bar making its life miserable, it will be less likely to cooperate with the government. And the country will be less safe as a result.

...

Dodd represents the phobic wing of the Democrat party as well as the special interest of the trial lawyers and the ACLU. He certainly doe snot represent the interest of US national security. The best course would be to do away with FISA entirely. It is clearly unconstitutional in application to intercepts of enemy communications in a time of war, regardless of where they emanate from. It is in fact an idiotic concept to apply the Fourth Amendment to surveillance of an enemy in war time. The enemy and those communicating with him should have no expectation of privacy of their communications and those who cooperate with the US are entitled to immunity. One thing the President could do if the Congress is stopped by Dodd from giving immunity retroactively is issue a blanket pardon to the companies who cooperated.