Are These Senators Ready to be President?

What passes for the world’s greatest deliberative body is back in session this week, which means it’s time for Barack Obama and Hillary Clinton to remember they actually have day jobs.

Those jobs matter now. The Senate is about to revisit the contentious issue of overhauling the 1978 Foreign Intelligence Surveillance Act. No doubt Senators Obama and Clinton would prefer to duck the shameful politics Democrats have played with this dangerously obsolete vestige of the Left’s overreaction to Watergate. With American lives at stake, however, there’s no more avoiding accountability by the “domestic spying” canard.

Politicizing national security, while utterly irresponsible policy, has proved valuable gamesmanship for Democrats. Aided and abetted by the anti-Bush dementia that grips the mainstream media, they have managed to depict national defense, the quintessential political issue, as a game of legal esoterica: one where compliance with FISA, a dubious statute fashioned for a bygone threat environment, trumps the salient question whether public safety can responsibly be made the slave of criminal-justice protocols.

Comes a time, though, when the music stops and adults have to start acting like adults. It is cynical but probably true that today’s Democrats will not get serious about national security unless and until they are put in charge of it. Were that to happen in November, they would quickly confront a harsh reality: President Bush’s post-9/11 policies, regardless of the inevitable mistakes, were never — as the Left’s hallucination holds — about empowering his administration. History will credit the President for taking unpopular stands, in the teeth elite hyperbole about privacy-invasions and Constitution-shredding, because he was determined that bin Laden’s promised reprise, massacring thousands more Americans, would not happen on his watch.

His watch, of course, is nearing an end. And that’s the point: as implausible as the Democrats’ narrative has been to this point, any reasonable person must now admit it is impossible. Our national security debate, of which overhauling FISA is a critical part, is not about the Bush administration or the past. It is about how we are going to protect Americans as the war against radical Islam continues for the next several years, under the leadership of a new president, who may very well be a Democrat.

Presidential campaigns are about vision and leadership. That makes this a trying time for Senators Obama and Clinton. They are both smart enough to know the success of any prospective government they’d lead is dependent on preserving the executive vigor essential to meeting emergent threats. Yet, they are being pushed in the opposite direction. MoveOn, the ACLU, and a narrow coterie of Left-wing groups which exert disproportionate influence over the Democrats’ nominating process are out for blood.

This “progressive” vanguard has never been interested in national security. Its ideological bent is post-sovereign. It does not distinguish between al Qaeda’s atrocities and what it sees as America’s. It is more invested in defeat and the consequent besmirching of the Bush legacy than in preventing the next 9/11 — which, upon happening, would be cast as America’s fault in any event.

And in the FISA debate, with such useful accomplices as Senators Christopher Dodd and Patrick Leahy, the lunatics now threaten to take over the asylum.

Last autumn, the Senate Select Committee on Intelligence (SSCI), by an impressive 13-4 bipartisan majority, got moderately serious about FISA’s flaws. Its bill was far from perfect. It left undisturbed the statute’s ill-advised assumption that intelligence collection is best overseen by an unaccountable court rather than the political representatives answerable to the voters whose lives are at stake. It even expanded that court’s capacity to micro-manage our intelligence agencies. Worse yet, it maintained the foolish mandate that government show “probable cause” — rather than the less burdensome “reasonable suspicion” — before eavesdropping on foreign spies and terrorists.

Nevertheless, the proposal would accomplish three crucial things. First and foremost, a permanent repeal of the outrageous 2007 FISA court decision which, in contravention of the statute’s clear intent, required judicial permission for spying on foreign operatives outside the United States. That ruling brought tens of thousands of communications, theretofore unregulated, under FISA’s surveillance-application rules. The impossible burden this entailed threatened to shut down intelligence collection, during wartime no less. That intolerable outcome spurred last summer’s stop-gap fix — the one set to expire in two weeks, creating the current urgency for Congress to act.

Second, the SSCI proposal streamlined the process for obtaining foreign surveillance authorization. Third, it provided immunity from suit for telecoms which, relying on the government’s request for help and assurance of propriety, assisted the NSA’s warrantless surveillance against suspected terrorists following 9/11 — a time when all indicators pointed to more attacks.

This proposal should have sailed through. Democrats could have rationalized that they’d dealt with the most pressing issues. The Bush administration could have said that, given the Democrats’ majority in Congress, no better legislation was possible: overseas intelligence-gathering would proceed without interruption under the “rule of law” — which, as the Left insists, means under statute. That is, the president would be spared the obloquy sure to follow if he continued surveillance, despite the expiration of last summer’s FISA-fix, by relying on his inherent constitutional authority.

FISA critics (like me) would have had little practical choice but to be reluctantly supportive. Meanwhile, sensible backers of Senators Clinton and Obama would have rejoiced — however mutedly — that a huge landmine on the path to the White House had been removed: the Hobson’s choice of drawing their base’s wrath by responsibly endorsing the compromise or showing themselves unserious about national security, and thus unelectable, by opposing it.

It is not to be. As his been the case throughout his inept tenure as Majority Leader, Harry Reid is unable to keep his unruly charges in line. Like the MoveOn.org shock-troops, Senators Dodd and Leahy, aligned with House extremists, are more interested in fighting yesterday’s irrelevant legal battle than ensuring tomorrow’s security. Unlike those of us who accept that legislation involves compromise if we are going to get the big things right, Dodd and Leahy’s rear-guard action is ready to scotch the SSCI bill over telecom immunity.

Obama and Clinton have to know this is a boneheaded play, on both politics and policy. The vast majority of Americans wants aggressive surveillance against the next Mohamed Attas — the operatives inside the United States taking their marching orders from jihadist central command in Pakistan, Iraq, Iran and elsewhere. Sure, it’s a matter of passionate concern to a sliver of Bush-bashers and libertarian extremists whether that surveillance proceeds under a statute or under the president’s Article II powers. But the other 95 percent of the country — the people whose heads start to hurt when we lawyers lecture them on the difference — couldn’t care less. They just want it done.

Either Obama or Clinton is very likely to be the president responsible for preventing the next attack. The Left’s vision of FISA overhaul is an ill-advised gutting of presidential power. Joining it today would only tie the candidates’ own hands tomorrow — the hands that will be blamed if radical Islam pulls off the WMD strike that is its fondest wish.

In that same vein, the two Democrat frontrunners surely realize it makes no sense to punish the telecoms for complying with government pleas for assistance — the kind of pleas a President Obama or Clinton may be the next to make. They will want the telecoms collaborating with government to maintain our technological edge, not incentivized against cooperation while al Qaeda exploits today’s systems. (Full disclosure: My views on FISA have not changed since the early 1990s, when I first became acquainted with the statute while my wife and I were both prosecutors; but, for what it may be worth, I note that my wife now works for Verizon.)

FISA presents ominous issues for Sen. Clinton. First, we already know she knows better than Dodd and Leahy. FISA’s last significant overhaul occurred in 1994, during her husband’s tenure — the tenure she cites as the major source of her qualifying experience. It was after President Clinton, in Bush-like fashion, authorized warrantless searches in a national security investigation. Deputy Attorney General Jamie Gorelick was dispatched to testify on the Hill. She soundly advised Congress that, while the administration agreed FISA should be amended to require judicial approval for such searches, President Clinton was not forfeiting his constitutional power to order them unilaterally if, in his judgment, national security demanded it.

Moreover, Sen. Clinton’s White House bid is burdened by the Clinton administration’s calamitous bolstering of the so-called FISA “wall.” This legally unnecessary self-regulation, impeding intelligence agents and criminal investigators from sharing information, foiled the possibility of identifying several 9/11 plotters before the attacks. If Clinton is going to live down that legacy, she has to show, in no uncertain terms, that she now “gets it.” Non-candidates Dodd and Leahy, and unserious candidate John Edwards, can afford to play to the fringe. Clinton can’t. She must prove she will brook no further sideshows that stop us from gathering and connecting the dots.

If she fails to do that, it presents a real opportunity for Sen. Obama. He holds himself out as the agent of change prepared to rise above petty partisanship to do the right thing for the country. How better to put his money where his mouth is than to deploy his extraordinary communication skills in explaining why we must “move on” from divisive bickering?

Either way, though, there’s no place for Clinton and Obama to hide on FISA. And they can thank the fifth column that now finds its home in a once great party — the Democratic Party of FDR, Truman and Jack Kennedy, which once stood four-square against America’s enemies.

As candidates, the Senators have pandered plenty to this fringe, as demanded by today’s Democrat politics. But the next U.S. president must be president of all the American people. That would be the sleeping giant that made itself heard after September 11, 2001, demanding greater vigilance at home, aggressive pursuit of our enemies overseas, and a sensible line-drawing between the desire for liberty and the need for security.

Time to step up to the plate. Whether either of them can do it will tell us what we need to know about their fitness to be commander-in-chief. And as conservatives evince a palpable lack of enthusiasm for the GOP’s top-tier candidates, a compelling demonstration of national-security sobriety could, for Clinton or Obama, spell the difference between winning and losing.

Mr. McCarthy, a former federal prosecutor, directs the Center for Law & Counterterrorism at the Foundation for the Defense of Democracies.