June 13, 2011 | National Review Online

FISA Reform: The Bad Bill that Beats No Bill

The Senate bill is bipartisan -- and that's nothing to celebrate.

Wednesday morning, President Bush wisely told the House of Representatives that there would be no further delays: There must be action on an overhaul of the 1978 Foreign Intelligence Surveillance Act (FISA) within the next 48 hours or the current stopgap measure, the Protect America Act, will expire.

If that happens, the current statutory authority for the intelligence community to monitor foreign terrorists overseas will end. The CIA and NSA, under a secret FISA court ruling Americans have not been permitted to review, would be required to seek probable-cause judicial warrants to surveil terrorists in Iraq, Afghanistan, and elsewhere around the globe. That impossible burden — bringing tens of thousands of enemy communications under FISA’s arduous legal procedures, all for the benefit of alien enemies who have no right to privacy protection under American law — would shut down intelligence collection.

Nevertheless, the president also lavishly praised legislation passed by the Senate Tuesday. Compared with the atrocious alternatives proposed in the House and by senators of the hard Left, the Senate bill is indeed sensible. It is nevertheless deeply flawed. Here between Scylla and Charybdis, there is no choice: We need to get the Senate bill passed because the alternative is intolerable. But don’t be fooled. Despite the president’s flinty insistence that “the Senate bill is a good bill,” it is hardly that.

The White House seems pleased with the Senate proposal for two reasons. The first is its grant of retroactive immunity from suit to the telecommunications companies that assisted the government after 9/11 in the warrantless-surveillance program. This is both fair and essential. It makes no sense to punish companies which cooperated with the government in a time of crisis under circumstances where they were assured their compliance was legal. More importantly, we need the industry’s cooperation to maintain our technology advantage over jihadists who exploit modern communication methods to spread their ideology, raise funds, recruit new terrorists, and target Americans. (Note: I am a longtime FISA critic, but as I’ve mentioned before in the interest of full disclosure, my wife works for Verizon.)

Still, the president’s second rationale for the bill makes far less sense. He brags that the senate bill passed by “a wide bipartisan margin.” It is a mantra repeated by administration operatives and Republicans on the Hill. But let’s be blunt. The Senate is controlled by Democrats who have fought the administration tooth and nail for years on vital national-security improvements — not just FISA but the Patriot Act. Naturally, wide bipartisan support means many of these Democrats are happy. What makes them happy, though, should make you worried. What we have here is a deeply, deeply flawed proposal.

To repeat, there is no choice. It’s a bad bill we badly need.

Now ordinarily, if a president is given a bad bill to sign, he can veto it and insist on a better one. And in theory, the president should have some leverage on FISA. Every federal appellate court to rule on the issue — including the highest, most specialized court created by Congress strictly to rule on surveillance matters, the Foreign Intelligence Court of Review — has concluded that the president has inherent constitutional authority to order surveillance on foreign threats to national security. In a perfect world, President Bush would be able to tell recalcitrant Democrats in the House, “Don’t want to pass the Senate bill? Fine. I’ll order surveillance to continue under my Article II power.”

But in this most imperfect world, theory crashes into harsh reality. The government, thankfully, does not run the telecommunications industry. The telecoms do. For nearly three years, Democrats and their Bush-bashing allies have politicized national security, inveighing — despite the aforementioned court precedent — that it was a violation of law for the telecoms to comply with the administration’s post-9/11 requests for assistance (requests made when intelligence indicated additional waves of attack were likely; requests about which top Democrats in Congress were fully briefed). Democrats have encouraged the lawsuits as useful tools for portraying the administration as lawless. Not content to leave the telecoms holding the bag, they have taken every opportunity to signal their determination to make the telecoms pay for the Bush administration’s purported sins.

So, if you’re a telecom, why on earth would you cooperate if the Bush administration yet again decided to resort to its constitutional power to protect the country? You might be totally sympathetic — and the telecoms’ prior patriotic service demonstrates that they are. But you’d be opening yourself up to yet another round of multibillion-dollar class-action suits. You’d have no choice but to say, “Mr. President, sorry, but you need a court order.” And, indeed, if Democrats continue their recklessness, someone is eventually going to say, “Y’know, we can’t even trust your court orders — how do we know you’re not going to let someone sue us for complying with them?

In sum, Democrats have so politicized national-security surveillance over the past three years that, as a practical matter, the president’s constitutional authority is a toothless theory. The only thing that matters anymore is statutory authority. If the House does not pass the Senate bill, there will be no statutory authority, and lifesaving intelligence will be lost. It’s that simple.

We should not, however, delude ourselves. This statutory authority is freighted with many downsides. To be sure, it avoids the worst of the fringe Left proposals, which, besides criminalizing the American telecommunications industry, would vest Osama bin Laden and his ilk with Fourth Amendment protection. But this is not FISA reform as the Bush administration would have it. It is the FISA reform of the Center-Left. It’s probably as much as we could hope for in an election year from a Congress dominated by Democrats. But that doesn’t make it good. In fact, it exacerbates, rather than addresses, FISA’s profound problems. It amounts, moreover, to a power grab by the legislature of core executive powers.

The Senate has essentially ignored the intelligence community’s counsel that FISA should be made “technology neutral” — that is, it should focus exclusively on the targets of surveillance (e.g., are they U.S. persons or not; are they inside the U.S. or not?), not, as now, on the method of surveillance (e.g., does the interception involve “wire” or “radio” communications?). Any statute that focuses on technology will become obsolete (or worse, counterproductive) when technology changes — indeed, that is a principal reason FISA needs an overhaul now.

Further, as I’ve pointed out many times before, FISA’s main problem is its transfer of control over national-security surveillance from the accountable political branch, the executive, to the unaccountable non-political branch, the judiciary. Thus, the fundamental political decisions about how aggressive our monitoring should be — how much more we should do in times of crisis, and how much less in peacetime — are removed from the American people. The Senate bill, however, increases the role of the FISA court. Yes, some of FISA’s labyrinthine procedures are streamlined; but the trade-off is that judges will now be passing on the propriety of overseas spying — a role even the Leftist post-Nixon Congress that enacted FISA recognized as inappropriate for courts.

If a judge gets national security wrong, we can’t remove him or her from office. In fact, because the FISA court is secret, we are not even permitted to learn which judge makes a decision, much less read the decision itself. (That is precisely the case with the 2007 ruling which caused a crisis in overseas intelligence collection and prompted the urgency to overhaul FISA.) There are more democratic ways (such as congressional oversight) to ensure that the executive does not abuse surveillance power. Expanding the judicial role is a mistake.

The bill also includes the so-called Wyden Amendment, proposed by Sen. Ron Wyden (D., Ore.), which requires a probable-cause judicial warrant before the intelligence community may conduct surveillance on terrorist groups outside the United States if an American citizen is involved. Of course, Americans outside the United States do not have a Fourth Amendment expectation of privacy — they have voluntarily placed themselves outside the protection of American law. The Wyden Amendment would hamstring U.S. intelligence despite the fact that every foreign intelligence service in the world may target the same American citizen without restriction. Thus, at a time when we know al-Qaeda is trying to recruit Americans to conduct attacks, only our intelligence community would be kept in the dark. That is lunacy.

It has long been screamingly obvious that a permanent intelligence overhaul is needed, one which provides certainty for the intelligence community, the telecommunications industry, the courts, and the public. Nevertheless, the senate proposal also includes a six-year sunset provision. In other words, we are setting ourselves up to go through this brinksmanship again in 2014 — perhaps under a very different administration and Congress with even wider margins for Democrats who have shown themselves considerably more concerned about terrorist rights than public safety.

Worst of all, the Senate proposal contains an “exclusivity” provision. It prescribes that any surveillance outside eavesdropping statutes enacted by Congress is illegal. That is, any telecommunications company assisting such a surveillance — even if it did so at the request of the president in a time of national emergency — would face criminal or civil liability.

The provision is an unconstitutional stripping of executive power. As noted above, the federal courts have recognized the president’s unilateral authority to collect foreign intelligence. That power cannot be stripped by a statute. Again, the Supreme Court has instructed that our system contemplates an accountability nexus between national-security decision makers and the voters whose lives hang in the balance. This is what we elect a president for. It is a responsibility that cannot be delegated to judges — who, it should be noted, do not deal with foreign intelligence services, do not gather or analyze classified information, do not have responsibility to protect intelligence methods and sources, and do not have inherent expertise in intelligence matters.

When Congress enacted the first wiretapping statute in 1968, it acknowledged the plenary power of the president in matters of national security against foreign threats. What was true about the Constitution in 1968 remains true today — the Constitution cannot be changed by a statute simply because a majority of the legislature disapproves of the President or wants to usurp the power itself.

The administration is dismayed. Still, officials argue that the new exclusivity provision just reiterates the one already set forth in prior surveillance law. Yes, but that was before the administration (properly) ignored that provision in the wake of 9/11 and directed the NSA to monitor enemy communications outside FISA restrictions. The administration can repeat ‘til the cows come home that a statute cannot reduce the executive’s constitutional authority. The fact remains that Congress is reasserting its claim that the president has no independent legal authority and, by signing the bill, President Bush will be seen — with good reason — as agreeing.

Plus, as I’ve observed before, Justice Anthony Kennedy has opined that once a president signs a congressional enactment, that represents a determination by the political branches to which the Court should pay great deference in determining constitutionality. As the Court’s four liberal justices certainly agree with Justice Kennedy on that proposition, it is futile for the administration to hope the federal courts will invalidate the exclusivity provision once the president signs it.

The administration surely knows this, but it is resigned to reality. Defending principle would do no practical good here since no telecom in its right mind would comply with a warrantless presidential request anyway. And with over 200,000 American military personnel now dependent on battlefield intelligence, with 300 million American civilians targeted for mass-murder by radical Islam, it would be unconscionable to let intelligence-collection lapse in order to vindicate a power that has effectively been nullified.

The Senate bill must become law. The president must demonstrate unwavering determination to make it law, and he is clearly doing that. It is the only way to stare down the irresponsible Left — the cabal led in the House by Speaker Nancy Pelosi, just as, in the Senate, it was proudly led by prospective presidential nominee Barack Obama and cravenly followed by Hillary Clinton (who didn’t show up to vote).

But please, let’s stop trumpeting the wide bipartisan margins in support of an enterprise that dilutes the executive’s capacity to safeguard the American people. The framers recognized, as Hamilton put it, “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” They expected presidents to defend executive turf. We can grudgingly accept that President Bush is not in a position to do that. We shouldn’t be asked to celebrate the unsurprisingly bipartisan spirit of the usurpation.

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

Read in National Review Online