FISA Reform Debacle in the Making?

Collecting intelligence and connecting dots isn’t just good policy.  It’s good politics.  The reform of FISA — the ill-conceived, outdated Foreign Intelligence Surveillance Act —  should thus be a huge political winner for the Bush administration and national-security conservatives.  It is sadly telling, then, that we can already mark it down as a loss.  The real question now is:  just how badly will the Left be permitted to damage our capacity for self-defense?

There are three proposals on the table.  None of them tackles the core constitutional and practical flaws of FISA.  One, emerging from the Senate Intelligence Committee with overwhelming bipartisan support and administration backing, has real downsides.  Still, it does at least address the parlous state of our foreign intelligence capabilities — the difference-maker between preventing terrorist attacks and counting casualties.  The other two, simply stated, are disasters — party-line gambits wrought by House Democrats and Chairman Patrick Leahy’s Senate Judiciary Committee.

The fundamental problems with FISA cannot be fixed by reform.  That would require repeal, for which there is no political will — so successful have the media, the ACLU, and Left-leaning academics been in recasting national defense as a legal exercise.  To the contrary, the Framers saw national defense — and its bedrock components like foreign intelligence collection — as the quintessential political activity.  Ingeniously, they designed an accountability nexus:  decisions were to be made by the political branches directly accountable to the voters whose lives were at stake.  Policy-makers who unduly curbed individual liberty or insufficiently safeguarded the public would answer at the ballot box.  Primarily, this meant the president, whose foreign affairs powers have long been recognized as plenary.

The judiciary, the non-political branch, would have no role.  As late as 1948, the Supreme Court expressly recognized that, besides being bereft of foreign intelligence tools, judges are not accountable to voters.  It would be grossly inappropriate for courts to assume political responsibilities, particularly in life-and-death matters.  And in 1968, when Congress enacted the first federal wiretap statute to regulate eavesdropping in criminal investigations, it took pains to note that it was not purporting to interfere with the “constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack …, [and] to obtain foreign intelligence information deemed essential to the security of the United States.”

Then came Vietnam, Watergate and their attendant domestic spying scandals.  Not content with driving an abusive president from power, the most activist liberal Congress in modern American history set its sights on usurping presidential power.  One result was FISA, enacted in 1978, which purported to vest the judiciary with the president’s constitutional authority to determine which alien operatives — “agents of a foreign power” in the statutory parlance — could be subjected to electronic surveillance. 

Quite apart from the stark separation-of-powers and institutional-competence problems posed by this construct, FISA further imposed a courtroom burden-of-proof.  Eavesdropping could not occur unless the executive branch satisfied the newly created FISA court that there was “probable cause” to believe the target was a spy or an operative of a foreign terrorist organization. 

This is a significant hindrance.  The President’s national-security surveillance powers had previously been limited solely by the Fourth Amendment, which merely requires that searches be reasonable, not that they be supported by probable-cause (the standard that applies only to criminal investigations).  It is doubtful that a probable-cause hurdle made sense back when our principal challenge was Cold War espionage, involving bipolar superpowers which had a mutual interest in avoiding excessive provocations.  The hurdle became downright intolerable, however, once our threat environment came to be dominated by jihadist terror — elusive transnational networks energetically plotting suicide strikes against the United States.  To have probable-cause on a target is to know already that he is dangerous.  That’s too late.  Today’s challenge is to discover the unknown Mohamed Atta in our midst, something that can’t be done unless surveillance begins whenever it is reasonable to suspect a foreign operative.

FISA’s design flaws have had the predictable effects.  Unaccountable judges have been less concerned about national security than due process for terrorist suspects.  In 1995, the Clinton Justice Department infamously heightened “the wall” that impeded information sharing between national security agents and criminal investigators; but, to be fair, this foolish and legally unnecessary restriction was largely prompted by years of hypothetical judicial fears that rogue government agents might resort to FISA as a pretext to obtain wiretaps for what were really ordinary criminal cases.  Even after Congress, in the Patriot Act, dismantled the wall following the 9/11 attacks (recognizing that it had very likely prevented the FBI from capitalizing on opportunities to thwart the plot), the FISA court attempted to reinstate it by judicial fiat — an effort that was reversed on appeal.

More recently, an alarming FISA court ruling effectively shut down wartime foreign intelligence collection.  Besides being a creature of the 1970’s threat mosaic, FISA is also a prisoner of that era’s obsolete telecommunications technology.  Importantly, even the left-wing Congress that enacted FISA did not wish to interfere with intelligence collection overseas.  It crafted the statute in such a way as to protect only persons inside the United States.  Outside our country, the CIA and the NSA were to continue their operations uninhibited.  This made sense.  FISA’s bugbear was arbitrary government monitoring of Americans — true Nixon-era domestic spying on political opponents.  The idea was most certainly not to establish judicial management of foreign-intelligence gathering.  After all, American courts have no jurisdiction outside the U.S.; and, since espionage (which is what we do overseas) is universally illegal, it would be perverse to have judges, bulwarks of our rule-of-law, regulating it.

Unfortunately, FISA shortsightedly expressed this distinction between foreign and domestic surveillance in the language of Telecom Circa 1978.  Basically, judicial approval was required for wire communications, reflecting the bygone analog era of domestic telephony.  Radio communications — quarry of NSA satellites targeting foreign telephony — were exempted.  The telecom revolution has turned this technology on its head.  Communications (including by cell-phone and email, methods virtually unknown in 1978) now race in disconnected digital packets through international networks, primary hubs of which are in the U.S.  This should be a boon to our intelligence collection, since a call from, say, a terrorist in Pakistan to a terrorist in Iraq must now zoom through U.S. wires, enabling our intelligence operatives to seize it more easily.

However, there’s a wrinkle.  If the NSA is targeting a terrorist in Pakistan, it doesn’t know whom he is going to call until he punches in the number.  Even if he has never called the U.S. in his life, and never intends to, it is always theoretically possible that he might.  Thus, that hypothetical American could conceivably be on the receiving end of a hypothetical communication transmitted, at least in part, by wire.

Of course, you could so speculate about any call made anyplace in the world, the vast majority of which include no interlocutors inside the U.S.  No matter.  Earlier this year, a FISA court judge — reversing decades of practice and ignoring the patent congressional intent in FISA to exempt foreign-to-foreign communications — ruled that, just to be on the safe side of due process, FISA court permission would now be required before American intelligence agents could monitor foreign communications occurring wholly outside the United States.  Thus, for example, when three American soldiers were kidnapped in Iraq in May, the government was required to comply with FISA’s requirements before it could eavesdrop on our enemies in a foreign war zone.

Complementing such perilous absurdities was the potential suspension of all overseas intelligence collection while the Justice Department prepared laborious applications for FISA court permission to monitor countless thousands of foreign communications.  This potential catastrophe — while al Qaeda targets us for attack, no less — finally enabled the administration to shame the reluctant Democratic Congress into passing a temporary fix, called the “Protect Act,” as lawmakers were skipping town for their August recess.  The bill reverted FISA to its original purpose of regulating the domestic collection of foreign-intelligence, excluding foreign-to-foreign communications.  But the measure is due to expire in February 2008.

This puts Democrats in a box.  Their hard-Left base, legatees of the 1970s ethos that perceives the U.S. government, not radical Islam, as the greatest threat, will go berserk if Democrats concede executive authority without judicial oversight — even authority the executive plainly has under the Constitution.  Yet, the insulation of foreign terrorists from monitoring would be wildly unpopular with most of the public, reminding Americans as the 2008 elections beckon that, with some honorable exceptions, today’s Democrats would make suspect custodians of our national security.

Wiser Democrats just want the issue to go away.  Thus, by a lop-sided 13-2 margin, the Senate Select Committee on Intelligence (SSCI) approved a bill that that reaffirms the Protect Act’s exemption for foreign-to-foreign communications.  In addition, it would effectively end lawsuits against telecommunications service providers who cooperated with the administration’s warrantless terrorist surveillance program following the 9/11 attacks.  Plainly, if we are going to stay ahead of the technology curve and prevent attacks, we need the people who know the technology best to be in the tent, enthusiastically assisting government.  That assistance cannot be expected if providers know that the price of good-faith cooperation at the behest of government will be massive litigation expenses and potentially ruinous judgments due to lawsuits brought by self-styled “public-interest” groups.  (Though I have been a FISA critic for many years, I note in the interest of full disclosure that my wife works for Verizon.)

Even this SSCI bill is plagued with error.  Our current straits owe much to the folly of intruding courts into the intelligence collection business; yet, the bill would actually increase the judicial oversight role.  The FISA court would rule on the adequacy of the method (hereafter, the “protective procedures”) by which the Intelligence Community ensures that only communications between overseas aliens are intercepted.  If the court determined that the procedures were inadequate, and that decision were affirmed on appeal, monitoring would have to stop even if the president believed it was vital to protecting American lives. 

Moreover, an amendment added by Sen. Ron Wyden (D-OR) calls for FISA court approval before foreign agents who happen to be U.S. citizens may be surveilled in foreign countries — i.e., in places where they have no reasonable expectation of privacy.  Thus, ludicrously, American terrorists get protection not afforded to, for example, American drug traffickers, while U.S. agents are obstructed from obtaining intelligence that foreign services (including hostile ones) collect with ease. 

Finally, the SSCI bill naively and impractically calls for intelligence analysts to count “the number of persons located in the United States whose communications were reviewed.”  In the real world, when analysts vet a communication as irrelevant, they move on to the next one — they don’t waste time delving into where the participants were located.  Consequently, this provision, however well-meaning, would result in greater invasions of privacy and an enormous expenditure of sparse intelligence resources.

Still, even with these problems, the SSCI bill is a model of good policy judgment compared to the monstrosities coming out of the Judiciary Committee and the House.  Senator Leahy’s politicized measure is a paean to privacy eccentrics and Bush-bashers.  It would deny liability protection for the telecoms, discouraging their cooperation while freeing the ACLU and its allies to pursue their lawsuits, beseech courts to expose our top-secret surveillance methods to the enemy, and have judges, rather than the political branches, make national security policy.  In addition, the Leahy bill would bar the government from continuing to collect intelligence pending the appeal of any FISA court finding that protective procedures were inadequate.  And in the wake of such a negative ruling, it would impose the impossible burden of forcing government to remove from its databases not only information acquired by the surveillance but any intelligence arguably derived from that information — even if that intelligence involves only non-Americans outside the U.S. and was otherwise obtained lawfully.

If anything, the House proposal is even worse.  Dubbed the “RESTORE Act” (a tortured acronym for “Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007”), it would also deny liability protection to the telecoms.  Worse, rather than limiting the judicial role to the review of protective procedures while foreign-to-foreign monitoring ensues, RESTORE would require the Justice Department to obtain judicial permission to conduct the surveillance.  The House attempts to obfuscate this seismic power shift (essentially, a codification of this year’s radical FISA court ruling) by permitting FISA authorizations to be long-term and “programmatic” (i.e., to target blocks of terrorists, like al Qaeda or Hamas, rather than calling for hundreds of individual authorization orders).  But there is no concealing that this would put control of our overseas intelligence gathering in the hands of judges focused on alien privacy interests, not the president constitutionally responsible for protecting American lives.

RESTORE, furthermore, would sunset in two years, at the end of 2009.  The six-year sunset attached to the SSCI and Leahy proposals is bad enough — the vital need for foreign intelligence is obvious and our procedures should be made permanent.  But a two-year expiration gambit is transparently political.  Speaker Nancy Pelosi’s nervous House mates want FISA reform off the table for this election cycle, liberating them to revisit it in 2009, when they hope there will be less public attention, a larger liberal majority, and a second Clinton administration running the show. 

Democrats know their weakness on national security is a severe electoral liability.  Campaigning for terrorist protections is better done in stealth, which is why they find the FISA court, with its secret proceedings before politically insulated judges, so ideal.  But Americans broadly desire accountable security officials, aggressively collecting intelligence on the jihadists trying to kill us.  President Bush needs to push for a better deal.  He can get one, but only if he mounts his bully pulpit with vigor.

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