FISA Deal on the Horizon?

The Washington Post reports that the administration and Senate leaders have struck a deal to revamp the Foreign Intelligence Surveillance Act (FISA). The deal would extend for six years the temporary measure reached this summer, which reaffirmed government’s authority to conduct warrantless eavesdropping on aliens outside the United States.

That authority was put in doubt by a secret FISA court ruling earlier this year. As enacted in 1978, FISA was designed to exclude foreign eavesdropping — the bread and butter of the CIA and NSA — from judicial oversight. Nevertheless, the classified ruling by the still-unidentified judge apparently reasoned that technological advances, which now cause even overseas communications to travel through U.S. networks, triggered a requirement for court authorization. This would paralyze intelligence collection, with potentially millions of communications, heretofore swept up without warrants, brought under the cumbersome FISA process.

This summer’s temporary fix, known as the “Protect Act,” essentially returned the status quo to FISA’s original design: no warrants for overseas surveillance. But it was set to expire in six months, or February 2008.

Democrats and their allies, including the ACLU, thus got busy. They crafted legislation labeled the “Restore Act” — a typically tortured Washington acronym for “Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007.”

“Restore” would have scaled back this summer’s Protect Act. Consistent with the secret FISA-court ruling, it proposed extending due-process rights to aliens overseas, including terrorists. Proponents endeavored to make this more palatable — which is to say, less obvious — by permitting year-long blanket warrants for blocks of terrorists (like al Qaeda, or Hamas), and allowing warrantless eavesdropping for up to 45 days in emergencies. Nevertheless, it was impossible to camouflage the bottom-line: Democrats wanted federal judges, not our intelligence agencies and military officials, to decide which aliens outside the United States should be monitored.

House Republicans, led by minority leader John Boehner and deputy whip Eric Cantor, refused to let them get away with it. Using a parliamentary maneuver known as the “motion to recommit,” they forced an amendment which would have specified that nothing in the bill prohibited the “surveillance needed to prevent Osama bin Laden, Al Qaeda, or any other foreign terrorist organization” from attacking the United States.

Of course, the proposed legislation did precisely this. The stark clarity (which a spokeswoman for House Majority Leader Steny Hoyer risibly decried as “a cheap shot, totally political”) made support for Restore untenable. Consequently, Speaker Nancy Pelosi tactically pulled it yesterday afternoon, lest a scheduled vote put Democrats on record as favoring judicial protection from surveillance for alien enemies.

Meanwhile, the White House has been negotiating with Senate leaders from both parties to strike a deal. If the accommodation reported by the Post this morning holds, it will be a case of both sides giving ground.

The administration appears to have agreed to more FISA court review, but apparently not of individual applications. In other words, as was provided in this summer’s stop-gap Protect Act, the president has agreed that the warrantless foreign eavesdropping will be submitted to the FISA court on a programmatic basis. The court, in essence, gets to assess the procedures by which the intelligence community ensures that Americans are not being targeted or having their communications inadvertently intercepted and warehoused. Assuming the procedures pass muster, the NSA, CIA, and DIA will be able, without individual warrants, to do aggressive intelligence collection overseas — particularly on so-called “foreign-to-foreign” communications.

For their part, Democrats appear ready to grant immunity from suit for telecommunication-service providers that assisted the administration over the years. The Protect Act provided prospective protection, but retrospective immunity has remained a major sticking point: Democrats reluctant since it would end the spate of pending civil lawsuits by the ACLU, CAIR, and others; President Bush threatening to veto any legislation that did not protect the telecoms on which our intelligence community is dependent. (Full disclosure: My wife works for Verizon. I’ve been on record for a long time on FISA issues, but you should be able to weigh that for what little it’s worth.)

Democrats have long demanded information about the NSA’s warrantless eavesdropping effort (i.e., the Terrorist Surveillance Program) that was exposed by the New York Times in 2005. The administration, though it briefed the bipartisan leadership of both chambers and the intelligence committees while the top-secret program ensued, has been reluctant to share more details. Earlier this week, however, it relented in the face of contentions by top Democrats (particularly Sen. Patrick Leahy, the Judiciary Committee chairman) that immunity would not be forthcoming unless more was known about what lawmakers were being asked to immunize.

It is not enough to say we can compel the telecoms to cooperate — that they can be (and are) required by law to assist the government by setting up wiretaps and the like. The simple fact is: The telecoms know the technology better than anyone else. If we are going to keep a step ahead of the people trying to kill us, the intelligence community needs the top experts in the tent helping us — help you can’t expect to get if you create a climate where they have to fear they will be sued for providing it.

The pending suits, moreover, were perverting into a litigation matter what is actually a core political question about whether Congress or the president has ultimate authority over foreign intelligence collection. In our system (as I’ve argued before), such policy disputes are supposed to be worked out by all of us at the ballot box, not by a few agenda-driven litigants posing as “public interest” groups. You might not like FISA overhaul; there are aspects of it I certainly don’t like. But that is how the political process is supposed to work: We argue about the best policy and then honor the legislative compromise.

Finally, the apparent agreement reported by the Post calls for a six-year sunset. The administration was pushing for the overhaul to be made permanent. The Democrats, facing the Hobson’s choice of a Lefty base ballistic over purported “domestic-spying” or bearing the “weak on terror” mantel into the ‘08 elections, wanted a two-year expiration. That would have made the issue go away until 2009, at which point they could hope a White House and Congress in Democratic control would water down the overhaul (i.e., further intrude the judiciary into the management of intelligence collection) absent the pressure of an electoral cycle.

Plainly, it would have been foolish for Republicans to have gone along with that approach. As yesterday’s hasty retreat by House Democrats powerfully illustrates yet again, aggressive foreign intelligence collection is not just an imperative; it’s popular.

The six-year extension is probably the best achievable outcome. The intelligence community’s authority will be flexible and certain through 2013. By the 2012 election cycle (if not before) we will know a lot more about how the new FISA is coping with the threat against us. Plus, if we are going to have FISA (and there appears to be no political will to explore alternatives), history teaches us that technology evolves faster than the legislative imagination. Periodically revisiting what we may do to ensure that it keeps up with what we can do is good policy.

Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.