Blunt Talk on Surveillance Reform

The surveillance-reform compromise bill, called the FISA Amendments Act of 2008, has overwhelmingly passed in the House. You can tell it must be a good deal by which of our lawmakers are angry and which aren’t.

The New York Times reports that one of its very favorite liberal Democrats, Jerrold Nadler of New York City, is an unhappy camper. No surprise there. Rep. Nadler — who was instrumental in winning a pardon (to be precise, a commutation) for Weather Underground terrorist Susan Rosenberg on Bill Clinton’s last day in office — is always available for a soundbite about how the Bush administration’s aggressive stance on terror is shredding the Constitution.

Absurdly, Nadler told the Times the surveillance overhaul is “a fig leaf … [that] abandons the Constitution’s protections and insulates lawless behavior from legal scrutiny.”

Of course, the Fourth Amendment had not heretofore been known to protect the privacy of alien terrorists calling each other outside the United States. Perhaps that’s why the bill, which denies such protection, passed by close to a 3-to-1 margin — and why the Senate Intelligence Committee’s bill, which Speaker Pelosi refused to permit a vote on for four months, would also have passed by a wide bipartisan margin, just as it did in the Senate. But now that we’ve “progressed” from post-9/11 to post-Boumediene (last week’s alarming Supreme Court decision that vested our alien terrorist enemies with constitutional habeas-corpus rights), who knows where all the progress will stop?

By contrast, Republican Whip Roy Blunt is content. I spoke with Congressman Blunt on Friday, and he underscored that, but for some new responsibilities imposed on the attorney general and the intelligence community regarding monitoring procedures, the overhaul restores our intelligence law to its original 1978 design: The intelligence community will be unhampered in its ability to collect foreign intelligence outside the United States.

There will be no special commissions to investigate the Bush administration’s warrantless Terrorist Surveillance Program, which has been investigated up, down, and sideways by the intelligence committees (among other committees) in both houses. While inspectors general from various agencies (including the Justice Department) will conduct investigations, their mandate, Rep. Blunt stressed, is factfinding about what the program actually did, not whether the attorney general’s conclusions about its legality were valid.

Substantial parts of those reports, he noted, will be unclassified. The public will be able to get a sense of what happened. While we must obviously take care not to educate the enemy about our methods, it’s worth observing that, once our lawmakers got access to classified materials that provided an accurate sense of what really happened, the lion’s share of them (such as a strong bipartisan majority of the Senate Select Committee on Intelligence) decided the telecoms merited immunity. And maybe that’s why the congressional leaders of both parties who were regularly briefed about the program throughout its existence were untroubled by it — at least until the Times exposed it and political opportunity knocked.

The immunity conferred by the bill is not “blanket” immunity. Rep. Blunt recounted that some public reports quoted him as peremptorily saying the cases against the telecoms would be dismissed. That’s a very incomplete version of what he said.

As he points out, the federal district courts will decide on dismissal; the decision will not be made by Blunt or any other lawmaker. To merit dismissal, the telecoms will have to show “substantial evidence” that they received assurances the program had been authorized by the president and determined to be legal. And the immunity covers only telecoms able to make that showing — not others which can’t, and not government officials.

I asked the GOP whip about one of my own major objections to our surveillance laws, the legally unnecessary imposition of a “probable cause” standard on agents gathering information on foreign threats to national security.

Rep. Blunt responded that, whatever the merits of that objection, he took comfort in the fact that the Mike McConnell, the director of national intelligence and a long-time intelligence pro, has been deeply involved in the intelligence overhaul and is very comfortable that we have the authority we need to do the job. Moreover, the bill’s emergency-surveillance provision, which allows the attorney general to approve surveillance without a warrant, gives us the necessary flexibility to react in a crisis.

Jerry Nadler is upset and Roy Blunt is pleased. If those were the only two things you knew, what would you think?

— Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.