Earlier this summer, Homeland Security Secretary Michael Chertoff said, “I believe we’re entering a period this summer of increased risk. We’ve seen a lot more public statements from Al Qaeda.” Past practices of Al Qaeda suggest that summer means the increased possibility for a terrorist attack against the West. This led Chertoff to conclude, “All of these things have given me kind of a gut feeling that we are in a period of increased vulnerability.”

The attacks of September 11, 2001, underscored the need for robust intelligence tools to help protect our nation from the threat of terrorism. One such tool involves tracking terrorist communications overseas to gather information on future threats. Since May 1, we have not been listening to these calls. Because of advances in communications technology, terrorists have been able to talk to each other undetected by using our own telecommunications infrastructure and exploiting our laws. This loophole prevents our intelligence agencies from collecting critical data and hinders our ability to listen to what is happening. We cannot ignore this dangerous problem.

The Foreign Intelligence Service Act (FISA) was enacted nearly 30 years ago. Since 1978, technology has changed dramatically and has become so advanced that FISA is now technologically outdated, placing artificial and unintended burdens on intelligence collection. As a result, these cumbersome and outdated legal processes prevent the intelligence community from acting quickly and with agility to conduct necessary surveillance of foreign targets.

FISA currently requires the intelligence community and the Department of Justice to provide privacy protections to suspects overseas and obtain warrants to collect foreign intelligence on those in other countries. Instead of protecting terrorists, our top priority should be doing everything possible to protect Americans from future attacks. We can improve intelligence collection by updating FISA and closing the gaps created by evolving technology.

Today’s fiber optic networks route many global communications through the United States. This makes it possible for entirely foreign phone calls between an operative in Afghanistan and another in Pakistan to flow through U.S. facilities. These communications can be intercepted here in the United States, but only if intelligence officials have first received approval from the courts. 

Admiral Mike McConnell, the Director of National Intelligence, has urged Congress to modernize the law to reflect the current environment. On May 1, 2007, before the Senate Intelligence Committee, McConnell said, “We are actually missing a portion of what we should be getting.” It is certainly a frightening prospect that we could be missing critical pieces of information because terrorists are using our own laws against us.

I agree with Admiral McConnell that FISA must undergo a comprehensive overhaul. This will likely be a time consuming process and rightfully provoke productive debate, as it did last year when the U.S. House of Representatives passed such legislation. Unfortunately, the U.S. Senate did not act and the bill was not signed into law. 

While I welcome this debate in the future, the threat we face today is real and immediate, and we must act to address the issue that is tying the hands of our intelligence community. I have cosponsored a bill offered by Congresswoman Heather Wilson, who serves on the House Intelligence Committee, to allow American agencies to listen to foreigners in foreign countries without a warrant. The bill would refine the definition of electronic surveillance to encompass all foreign communications by non-U.S. citizens.

Let me be very clear – under our legislation, a warrant would still be required to listen to U.S. citizens in the United States, but foreign calls routed through the U.S. by foreign operatives should not be protected from needed intelligence gathering.

With this change, until we can fully modernize FISA, we can allow our intelligence community to intercept terrorist communications while continuing to protect the privacy rights of American citizens. Congress needs to pass this bill immediately to remove the barriers and ensure that we are doing everything possible this summer to detect and prevent potential attacks on the American people.