Finally Fixing FISA

National Review
Monday, June 23, 2008

A compromise bill to overhaul foreign-intelligence surveillance passed in the House last week with an overwhelming bipartisan majority. The measure, strongly supported by the administration, now heads to the Senate. Passage appears certain. This bill is the urgently needed resolution of a national-security crisis caused by the recklessness of leaders of the Democratic party. Embracing that recklessness, Barack Obama threatens to torpedo this important national-security legislation with a poison-pill amendment in the Senate.

Let’s begin at the beginning: This story goes back to 1978 when, in response to Watergate-era snooping scandals, one of the most liberal Congresses in American history persuaded Jimmy Carter to sign the Foreign Intelligence Surveillance Act. FISA purported to transfer ultimate authority over national-security surveillance (that is, eavesdropping on operatives of foreign powers, including terrorist organizations) from the president, in whom the Constitution vests that authority, to the courts. It did so despite the Supreme Court’s longstanding recognition that judges are institutionally incompetent in the exercise of such power.

But even the Congress that enacted FISA offered some bright-line limits on judicial interference. The point of FISA was to provide Americans with privacy protection. It required the executive branch to show the FISA court probable cause that a target was an “agent of a foreign power” before eavesdropping on communications within the United States. FISA intentionally exempted from court jurisdiction the communications of non-Americans operating beyond our borders. Such aliens enjoy no privacy protections under U.S. law. Under FISA, the intelligence community remained free, as it had always been, to gather information overseas without judicial restrictions.

That arrangement endured until a secret 2007 FISA court ruling abruptly reversed 30 years of intelligence law. The court reasoned that, because modern technology often routes digital communications through U.S. networks even when all parties to the conversation are located outside the United States, such phone and email contacts should fall within FISA court supervision. This meant that our intelligence operators were required to comply with the laborious FISA application process even for “foreign-to-foreign” communications — such as, say, calls between terrorists in Afghanistan and Pakistan.

The ruling suddenly extended FISA to potentially millions of previously uncovered communications. It threatened to shut down overseas intelligence collection. Even Democrats conceded that a legislative fix was needed. But they agreed only to a stopgap measure (the “Protect Act”), which would expire after six months — during which time Democrats promised to ratchet up what they call “privacy protections” but which are actually an extension of Americans' civil liberties to overseas intelligence targets.

Negotiations tripped up, among other things, on the matter of immunity for telecommunications companies. At the request of the administration, telecoms had assisted in the NSA’s surveillance program. The administration had assured the telecoms that the program was legal — and with good reason. All the federal appellate courts that have dealt with the issue, including the Foreign Intelligence Surveillance Court of Review (the top court established in FISA precisely to rule authoritatively on such matters), reasoned that the FISA statute did not, and could not, repeal the president’s constitutional authority to monitor foreign threats to national security without judicial oversight.

Frustrated in its efforts to attack the administration directly — because the public supported aggressive surveillance against the enemy and because the government can assert its state-secrets privilege in court — organizations such as the ACLU and CAIR set their sights on the telecoms. Numerous lawsuits were filed, confronting the telecoms, their shareholders, and customers with the prospect of billions of dollars in liability.

The administration insisted that the FISA compromise had to include legal immunity protecting the telecoms from these ruinous, politically driven lawsuits. After thoroughly investigating the NSA program, the Democrat-controlled Senate Select Committee on Intelligence agreed, proposing a bill that won lop-sided approval in committee and that was eventually passed by a wide bipartisan margin in the upper chamber.

But House Democrats, taking their cues from Barack Obama and the party’s MoveOn.org wing, refused to permit a vote on the Senate bill. Thus, for four months, the intelligence community has been hamstrung in its ability to collect information on newly emerging terror cells. National Intelligence Director Michael McConnell, a longtime, non-partisan professional who held key national-security posts in the Clinton administration, warned that our intelligence was being degraded by the failure to pass the FISA bill.

Now, finally, a compromise has been struck. It is far from perfect: Democrats insisted on increasing the FISA court’s power to approve intelligence-gathering procedures. They have maintained the courtroom “probable cause” standard, an unnecessary hurdle for national-security surveillance. In addition, a platoon of inspectors-general will now investigate the NSA program even though it has already been extensively probed by Congress. And leaning deeply into the wrong turn first taken in the original FISA legislation, lawmakers have included unconstitutional language that purports to deprive the commander-in-chief of his Article II authority to monitor our enemies absent court permission.

All that said, the compromise is a necessary one. To burden our intelligence gathering overseas with FISA restrictions, imposed by a judiciary increasingly inclined toward unprecedented due process rights for hostile aliens, is madness. The compromise bill essentially restores foreign-surveillance authority. Moreover, it immunizes telecoms that answered government’s call for assistance after 9/11. It is not “blanket” immunity. To get it, telecoms will have to show they were given assurance that the president had determined the NSA program was legal. The resulting dismissal of suits against such good-faith actors is vital to our national defense. If legal damages are the wages of helping government protect a nation under attack, the industry will have no choice but to withhold its cooperation.

This week, Sen. Obama promises to propose an immunity-stripping amendment when the Senate takes up the bill. That effort is certain to fail, but if successful would almost certainly prevent the compromise from becoming law, and would therefore leave our intelligence agencies in their current hobbled condition. The McCain campaign should take note: The public wants aggressive surveillance against our enemies, and we need it as a nation. Adult Democrats know that. Too bad Sen. Obama can’t be counted among their number.