FISA Can't Wait

It's been nearly two months since Congressional Democrats let the Foreign Intelligence Surveillance Act (FISA) expire. That gave terrorists two months to chat with each other on the phone without fear that anyone -- say the U.S. government -- was listening. Two months to plot God knows what.

Those conversations between terrorists have come and gone. Whatever they said, whatever they have planned, we cannot know. What's worse, while the terrorist's phone calls were secret, our lapse in intelligence was not; the whole world watched the Democrats go on vacation while FISA expired.

The issue that the Democrats seize, in an attempt to justify their failure to renew FISA, is whether those telecommunications companies that helped the U.S. government listen to the terrorists can be sued for their assistance. Democrats like to call that immunity.

There was a time when it was considered patriotic for citizens to assist the government during a a time of war. Americans voluntarily grew victory gardens and rolled bandages, simply to help the war effort. No one would have thought of suing the women and children who rolled the bandages if the military doctor who subsequently used them did so negligently. (Indeed, no one would have sued the doctor).

That was before the trial lawyers learned how much money they could make on contingency by convincing juries to return verdicts with punitive damages that bore no relation to the harm allegedly suffered.

Unlike the civilians who rolled the bandages in World War II, the telecommunications companies really had little choice but to help the government eavesdrop on terrorists. If it's unfair to penalize someone for voluntarily helping the government in the war effort, it is doubly wrong to penalize these companies that were, in essence, commandeered.

Not surprisingly, some individuals who were not terrorists were surveilled by mistake. Their loss of privacy pales in comparison to the loss of life on 9/11 and in the war against Islamofascism. If those people who were mistakenly wiretapped cannot bring a cause of action due to FISA, all they forgo is a little money (their trial lawyers are the ones who would really lose -- thus the lobbying effort against FISA).

When our government is prevented from eavesdropping on terrorists, in contrast, we lose the ability to foil future plots. This is not a hard issue. The Democrats' unspoken fear -- that they will lose big contributions from the trial lawyers -- is misplaced; to whom else can that lobby give? Not to Republicans, who want to cap punitive damages and reform tort law.

Eventually, the Democrats will cave on this issue. They need to stop delaying the inevitable, because every day they posture on FISA -- every day they vacation in recess -- gives al Qaeda a free pass to reach out and touch someone.