FISA Reform Is Vital to Stopping the Next Terror Plot, Not the Last One

Thanks to a testimonial error that National Intelligence Director Mike McConnell is now undertaking to clarify, a confusing turn has been taken in the debate over reforming “FISA” — the 1978 Foreign Intelligence Surveillance Act.  It is important to clarify the clarification.  Yes, it was a mistake for the nation’s intelligence chief to suggest that a vital though temporary fix enacted last month was instrumental in disrupting the recent jihadist plot in Germany.  But that hardly means FISA reform has no relevance to Germany. 

The point, McConnell should have made clear, is that the reform is essential if we are to prevent future mass-murder attacks like the one foiled in Germany.

McConnell now concedes that the new law did not have any impact on the U.S. intelligence community’s ability to help German authorities thwart the plot.  As the Los Angeles Times reports, he has issued the following statement:

During [a senate hearing on September 10th], I discussed the critical importance to our national security of the Foreign Intelligence Surveillance Act (FISA), and the recent amendments to FISA made by the Protect America Act. The Protect America Act was urgently needed by our intelligence professionals to close critical gaps in our capabilities and permit them to more readily follow terrorist threats, such as the plot uncovered in Germany. However, information contributing to the recent arrests was not collected under authorities provided by the Protect America Act.

It seems pretty clear that McConnell blundered here, and he was right to step up to the plate and say so.  FISA fans in Congress, however, are using his mea culpa to portray the German case as a demonstration that FISA is just fine and doesn't need fixing.  That is simply false.

To elaborate, the German jihadists were under surveillance for over a year.  U.S. intelligence shared with its German counterpart some intercepts picked up by the NSA, evidently involving the German subjects while they were in Pakistan.  The subjects were not seeking to contact people in the United States, so these were exactly the type of “foreign-to-foreign” calls at the heart of demands for FISA reform. 

Those demands are straightforward.  Federal courts have no business interfering in the ability of American spies to monitor people outside the U.S.  The CIA and the NSA should not need a federal judge’s permission to eavesdrop on a call from an al Qaeda operative in Pakistan to another terrorist in Germany, places where U.S. courts have no jurisdiction and non-Americans have no constitutional rights.  As originally enacted, FISA recognized this obvious fact and exempted such communications.

Nevertheless, the reality is that the German subjects had been under surveillance for over a year.  The intercepts in question were obtained while the old FISA (i.e., FISA as it existed before last month's temporary fix) was on the books.  Therefore, they could not have been obtained as a result of the FISA reform and are not properly described as a reform success-story.  McConnell was in error to suggest otherwise.

But a crucial point is being missed by FISA proponents like the usually solid Jane Harman (D.-CA), who, the LA Times relates, accused McConnell of “improperly acting as a political cheerleader for the new FISA law when his job demands impartiality.”  Harman carped:  “Excuse me, those people were under surveillance for 10 months,” and added in a speech to the Council on Foreign Relations, “Jane to Mike, please stop undermining the authority of your office.”

Earth to Jane, a funny thing happened during those 10 months:  the FISA Court presumed to rewrite FISA.

The Washington Post reported on August 3 that, under a ruling earlier this year by an unidentified FISA Court judge, judicial authorization must now be obtained for foreign-to-foreign communications.  The ruling was premised on changes wrought by the telecommunications revolution in the nearly 30 years since FISA’s enactment.  Foreign communications by phone or Internet now travel in digital packets that commonly pass through American switching stations.  That electronic journey, the anonymous judge reasoned, brings foreign-to-foreign calls into the purview of court supervision even though no participant in the conversation is in the U.S.

As written, FISA was intended to give a measure of due process to people inside the United States — primarily, Americans … the people American courts were established to protect.  It had nothing to do with the collection of foreign intelligence outside the U.S., work that is crucial to the security of Americans.  The new construction of FISA, however, would mean the CIA and NSA needed a judge’s permission to do their jobs.  Tens of thousands of intercepts — of the type which, because they don’t involve Americans, have gone on for decades without detailed affidavits, probable-cause showings, sign-offs by high executive branch officials, and judicial participation — would suddenly have to stop until that permission was obtained … while we are at war and under continuing threat of attack.

That was the imperative for FISA reform.  It may well be true that reform was not necessary for the NSA to share intercepts with the Germans ten months ago.  But ten months ago, FISA did not interfere with the NSA’s ability to intercept the communications that were shared with the Germans.  Now it does, thanks to the FISA court’s unilateral expansion of its authority — an expansion that benefits aliens, including hostile ones, at the expense of Americans; an expansion that shifts control over foreign intelligence collection from the accountable political actors constitutionally charged with protecting the Homeland to unaccountable judges on a court so secret Americans have not even been permitted to learn the name of the jurist whose ruling has profoundly affected their security, much less read the ruling.

That’s quite a departure given the Supreme Court’s repeated recognition of what, in the 1936 Curtiss-Wright case, it called the “delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations” — a field long acknowledged to include the collection of foreign intelligence. 

It is, moreover, quite a departure from the high court’s recognition, in the 1948 Chicago Southern case, that the framers intended an accountability nexus between the government officials responsible for national security decisions and the American people whose lives were at stake.  Such judgments, Justice Robert Jackson explained, are “decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”

So sure, FISA reform was not the reason we were able to prevent the last jihadist plot.  But it is likely to be the reason we are able to prevent the next one.  Unless, of course, Democrats who fought against FISA reform for months succeed in killing it when it comes up for renewal in February.

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