June 13, 2011 | National Review Online

Don’t Give In on FISA Reform, Mr. President

No more delays.

Just three days from now, last summer’s emergency legislation to forestall a collapse of foreign-intelligence collection will expire. President Bush issued a pointed reminder of that looming deadline last night, addressing the state of the Union before a deeply divided Congress.

Here’s hoping he sticks to his guns. The dangerously obsolete Foreign Intelligence Surveillance Act (FISA) doesn’t need another band-aid. It needs an overhaul, and needs it without further delay.

Democrats are betting that the president will not dare allow the stop-gap authorization he won in August’s “Protect America Act” to lapse, and will thus be amenable to another temporary extension — to be followed, no doubt, by yet more extensions. Transparently, the Left is trying to play a four-corners offense that effectively takes intelligence-reform out of the roiling 2008 election campaign.

That would improve the prospects of Democrat presidential frontrunners Barack Obama and Hillary Clinton. It would further lay the groundwork for one of them, as president, to refurbish FISA in a manner more congenial to today’s liberals: meaning more privacy rights for terrorists and less protection for Americans.

The president should not let them get away with it. This is one comprehensive reform the nation desperately needs. Moreover, the conditions for achieving a permanent fix that bolsters the security of American civilians and our troops will probably never be better than they are today. Now is not the time to blink.

Sensible Democrats want an extension because they understand their party’s position is indefensible. It confounds public weariness over Iraq with public unease over suppressing Islamic militants. Americans want vigorous operations, including aggressive intelligence collection, against al-Qaeda and its facilitators. The Democrats’ presidential candidates know that — that’s why they feel compelled to promise they will boldly fight the “real” war on terror (even as they compete over which of them would surrender most rapidly in Iraq). The Democrats’ strategists, and even some of their allies in the media, understand that public support for the troop surge in Iraq increased because it was having concrete results in routing al-Qaeda. They know it is political suicide to resist reasonable measures aimed at identifying our enemies and thwarting their efforts to attack us.

The administration’s proposed FISA overhaul is just such a measure. It streamlines what virtually everyone agrees is the overly arduous process for obtaining surveillance authorization. Reasonable people can disagree over whether federal courts should be involved in that process at all, and whether courtroom proof hurdles such as “probable cause” should be imposed on intelligence collection. No rational person, however, believes a court-authorization process should be so burdensome, as it is under FISA, that it impedes the intelligence community’s ability to monitor foreign terrorists with the same ease those terrorists enjoy in exploiting modern communications technology.

Moreover, the administration’s proposal reverses last year’s indefensible FISA court decision, which purported to bring exclusively foreign surveillance under the court’s jurisdiction. When FISA was enacted in the very different threat environment of 30 years ago, congress took pains to exclude overseas intelligence operations from court review. The idea in FISA was to provide a measure of due process to Americans inside the United States, not to require a court order before we could eavesdrop on a Saudi terrorist in Pakistan giving orders to Egyptian terrorists in Afghanistan.

The patent absurdity of the court ruling was what drove reluctant Democrats to sign off last August on the Protect America Act: They realized they could not justify grinding intelligence collection to a halt as the Justice Department scrambled to file applications for thousands upon thousands of subjects — including Iraqi insurgents targeting American soldiers — who have no right to privacy from American surveillance.

Finally, the Bush proposal prudently insists on immunity from civil suit for telecommunications companies which assisted the NSA’s warrantless surveillance program. (Though I am a long-time FISA critic, I note again, in the interest of full disclosure, that my wife works for Verizon.) As Attorney General Michael Mukasey observed in a recent Los Angeles Times oped, this is not “blanket immunity.” A lawsuit would be dismissed only if the AG certified that a telecom assisted the government upon a written representation that surveillance had been authorized by the president after a determination of its lawfulness.

The NSA program was a proper exercise of the president’s constitutional power. Even if one disagrees with that, however, any ire should be directed at the president, not telecoms which cooperated in good faith during a time of undeniable crisis. And if one is insistent that national-security surveillance needs court oversight, the solution is exactly what we’re talking about: to improve FISA by legislation so the need for future warrantless surveillance is unlikely. The answer is not to drag the telecoms through lawsuits (expenses for which are passed on to consumers) and disincentivize them from cooperating when we most need their expertise. Such suits, in any event, are just gambits by which privacy extremists and jihadi apologists seek to have courts impose what they can’t persuade the public’s elected representatives to enact.

The Bush proposals are so eminently reasonable that, back in October, the Democrat-controlled Senate Select Committee on Intelligence (SSCI) voted by an overwhelming bipartisan margin (13-2) to enact them. The bill had some troubling add-ons. For instance, it increased the role of the FISA court. Still, by and large, it was a reasonable compromise. It bespoke a refreshing unwillingness on the part of prudent Democrats to mount their 2008 hopes on a platform of protecting al-Qaeda from surveillance.

Common sense, however, is not the order of the day. Tugged to the hard Left by the MoveOn and ACLU types who are obsessed with fighting George Bush in court rather than safeguarding Americans in the Homeland and on the battlefield, other Democrats have tried to scotch the SSCI compromise. Sen. Christopher Dodd (D., Conn.) and Judiciary Committee Chairman Patrick Leahy (D., Vt.) insist there will be no deal if the telecoms are given immunity. Clearly, their goal is to manufacture more extensions, kicking the can into what they hope will be a new Democrat administration and larger Democrat congressional majority.

President Bush must not blink. He understandably does not want to re-stoke controversy over the extent of executive power. Still, the Constitution vests him with inherent authority to conduct warrantless surveillance if the Democrats’ brinkmanship causes Friday to come and go without a new law. The federal appellate courts, including the one created by FISA, have said so.

If forced to resort again to warrantless surveillance, the administration could make a point of fully reporting its activities to the intelligence committees in both houses. That way, the public can be assured executive authority is not being abused. Indeed, much to the chagrin of Democrats and other FISA enthusiasts, such a move would have a residual benefit: It would demonstrate that there are better ways than the FISA scheme to manage intelligence-collection — such as oversight by our politically accountable representatives, rather than delegation to a secret, unaccountable court.

If Democrats believe al-Qaeda deserves additional rights, they should be forced to make that argument in the light of day. Senators Obama and Clinton should be forced to take a public position on it: do they favor the SSCI compromise or should we expect any administration they’d lead to be as solicitous of the blame-America-first fringe as Senators Dodd and Leahy appear to be?

Such issues should not be removed from campaigns. To the contrary, they are what campaigns should be about. The administration and the Republican candidates must stand strong and demand permanent FISA reform, along the lines of the Bush proposal. If the Democrats won’t sign on, let them explain their competing vision to the public … if they dare.

— Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.