Politics & Policy

Fixing FISA

From the early days of the War on Terror, congressional Democrats have undermined our national security by siding with civil-liberties extremists on questions of intelligence collection. Among the most prominent examples of this — and a long-running one — is their position on reform of the 1978 Foreign Intelligence Surveillance Act, or FISA.

Let’s leave aside FISA’s dubious premise that a secret court, insulated from political accountability, should oversee foreign-intelligence collection. There is still broad consensus that the FISA statute needs overhaul. Enacted in the wake of Watergate, it was designed to discourage actual domestic spying, not the surveillance of foreign operatives inside the United States that Democrats like to call “domestic spying.” But FISA’s structure harks back to a bygone era of analogue communications technology that has been steamrolled by the telecom revolution. Moreover, international terrorist networks are different from the Communist threat that FISA’s Cold War–era authors had in mind. They are less predictable, more likely to strike, and more adept at exploiting new technologies which allow them to remain in contact with their operatives.

As evolving technology makes our enemies more efficient and deadly, FISA leaves us more sclerotic and vulnerable. Most recently, an order of the FISA court purported to force American intelligence services to seek a judge’s approval before monitoring foreigners outside the U.S.

The most striking feature of this ruling is its sheer impracticality. It brought millions of communications under judicial supervision — something far from the intent of Congress. The Bush administration and its congressional supporters embarrassed reluctant Democratic leaders into passing a temporary FISA fix this summer. But that provision — called the Protect America Act — is scheduled to expire in February. In any event, it is a mere band-aid that fails to address FISA’s deeper ills.

To thwart our enemies’ plans, we must capitalize on our technological superiority. FISA stifles us with its requirement that the government show probable cause before engaging in surveillance. This is a hopelessly slow and bureaucratic process, and the FISA court has proven itself a poor final authority: It has tried not only to stretch its purview to encompass foreign territory, but also to rebuild the disastrous pre-9/11 “wall” that prevented intelligence agents and criminal investigators from pooling information and “connecting the dots.”

Democrats thus find themselves in an uncomfortable spot. They know FISA needs major surgery and are scared of being blamed for another attack if changes are not made. But they are beholden to privacy extremists and leftists who think the American government is more dangerous than radical Islam, and promise to revolt if surveillance restrictions are eased. So they play a cynical game. Rhetorically, they claim to be all for sensible FISA reform, but behind the scenes they seek to undermine it.

They say, for example, that they favor permitting the intelligence community to monitor foreign-to-foreign communications without warrants; all they want, supposedly, is judicial supervision when people inside the United States might be intercepted. Of course, no one ever knows for sure who a foreign terrorist is contacting until he dials a number or clicks his mouse. All communications from foreign terrorists could theoretically involve Americans, even though only a small percentage actually do. Further, many people inside the United States are not Americans, and the terrorist operatives embedded here can do enormous harm — as the 9/11 hijackers demonstrated.

A sensible FISA fix would set a low threshold for the executive branch to commence monitoring. There should be no restrictions when targets are non-citizens outside the United States, even if they contact people inside the United States. Reasonable suspicion should be the standard when an American citizen or permanent resident alien is targeted. It is irrational to give non-Americans within our borders probable-cause protection: The Fourth Amendment does not require it, and experience shows that most foreign terrorists who infiltrate the U.S. are either illegal aliens or temporary legal immigrants. As federal judge Richard Posner has observed, probable cause allows us to monitor known dangers, whereas the security challenge today is to figure out who is a danger.

FISA reform should also protect communications-service providers who assist the government, and it should apply this protection retroactively. The controversy over the NSA program is a political dispute about whether the president or Congress has ultimate authority over foreign-intelligence collection. It should not turn into a legal dispute in which privacy activists compel disclosure of classified information while seeking to impose civil or even criminal liability on those who have assisted the government’s national-security efforts. Public safety increasingly relies on the cooperation of telecom providers. If ruinous lawsuits are the price of that cooperation, it will not be forthcoming.

Democrats are ready to move on FISA reform now because, understanding the light it shines on their national-security weakness, they want it off the table as the 2008 campaign heats up. No surprise, then, that they also want any reform to sunset in 2009. Republicans should not let them get away with it. FISA reform is both essential to our security and a political winner. Democrats should be made either to agree to a permanent and satisfactory fix, or to defend themselves against the charge that their recalcitrance puts us all at risk.


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