Politics & Policy

FISA Fumbles

The right thing it is not, but the Democratic Congress has done a barely adequate thing, albeit kicking and screaming: This weekend, it temporarily acknowledged the executive branch’s authority to monitor international communications for the purpose of gathering foreign intelligence.

This should not have been controversial. The single most important task of any president is to protect the United States from external threats. If the executive branch did only one thing, this would be it. To this purpose, presidents have for decades deployed the U.S. intelligence services — in particular, the CIA and the NSA — to intercept international communications.

That task has never been more vital than it is today, when transnational terror networks, seeking access to weapons of enormous power, vow to attack us after killing nearly 3,000 Americans. Yet our defense is hindered by an improvident and outdated legislative scheme, the 1978 Foreign Intelligence Surveillance Act. FISA was an overreaction to Nixon-era abuses, which included employing the CIA to conduct domestic spying on the administration’s political enemies. FISA purports to require that the president, before monitoring foreign communications, satisfy a federal court (specially created by FISA) that there is probable cause to believe the surveillance target is an “agent of a foreign power.”

We say “purports” because FISA is of dubious constitutionality. Foreign-intelligence collection is a plenary executive responsibility that judges are neither constitutionally authorized nor competent to oversee. Further, most of the targets of such surveillance are “non-U.S. persons” — a technical term meaning neither American citizens nor permanent resident aliens. “Probable cause” is a standard intended to prevent domestic law enforcement from breaching, by search or arrest, the privacy rights of American citizens. Most non-Americans, and especially aliens situated overseas, have no constitutional right to, and no expectation of, privacy from monitoring by U.S. intelligence agencies.

Even in its anti-executive zealotry, the Congress that passed FISA for Jimmy Carter’s signature understood this. Its provisions were carefully drafted so that foreign-to-foreign communications — say, a terrorist in Peshawar, Pakistan, calling a terrorist in Kabul, Afghanistan — did not come under the act. In those days — the antediluvian era of telecommunications — such contacts were deemed “radio communications” because they were monitored by NSA satellites.

The following quarter-century saw a technological revolution. Foreign-to-foreign communications now travel in diffuse packets of digital data through sophisticated networks, which route them not via the shortest route but via the least-congested terminals. Because American networks are the system’s best, a Peshawar-to-Kabul phone call or e-mail may pass through the United States.

This should be a coup for U.S. intelligence. Instead, because of FISA, it has become an obstacle. According to a ruling disclosed by House minority leader John Boehner, the FISA court has suggested that, absent judicial authorization, the NSA may not monitor even a foreign-to-foreign communication if it has passed through U.S. networks.

This preposterous assertion is in fact a predictable result of FISA. The legislation’s authors, instead of focusing on just the target of communication, regulated according to its type: radio or wire. As technology advanced from radio to wire, the very foreign communications Congress took pains to exclude from FISA’s purview were swept into it.

Months ago, the administration proposed a legislative fix for this problem. But the Democrats, eager to please their antiwar base, refused to take up the measure until the eleventh hour. They have finally caved and enacted FISA reform, but not nearly enough of it: Their bill does not address the fundamental conceptual flaws of the FISA regime, and, although it allows the NSA to intercept foreign-to-foreign calls, it does so only for now, requiring a review after six months.

The president and the Republican presidential candidates should thank their lucky stars for this Democratic blunder, which keeps a winning issue alive and demonstrates — once again — just how unserious the Left is about national security.


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