Over the last week, a venomous debate has raged between Time columnist Joe Klein and his far-Left critics about the meaning of Democratic legislation aimed at how foreign targets in foreign countries are treated under the Foreign Intelligence Surveillance Act. With respect to the arguments of his critics, Klein rightly pointed out that, “This is all a partisan waste of time, fodder for lawyers and civil liberties extremists.” He also was correct that we should be seeking bipartisan consensus on critical national security issues rather than using them as pawns to further extreme political agendas.
As one of Klein’s sources for the complex technical and legal points that seem to be in contention — and because Klein, his critics, and Democrats in Congress have accused Republicans of trying to “misrepresent” these issues — it is important to correct and clarify the record on three critical points, which also bear heavily on the broader debate currently at hand.
First, the issue in both the Protect America Act that became law in August and the legislation currently under consideration in Congress, is how to ensure effective surveillance of foreign intelligence targets in foreign countries. The issue is not nor has it ever been about surveillance of Americans, as some Democrats have irresponsibly suggested. Under any of these bills, if the intelligence community wanted to target an American in the United States for surveillance, it would need to obtain an individualized court order.
The straw-man complaint of the Left, however, is that Americans who talk to targeted foreigners in foreign countries might incidentally have their conversations intercepted. It takes a pretty good degree of self-absorption or paranoia for someone to believe that efforts to target al-Qaeda operatives in foreign countries are somehow about them. If someone in the U.S. is talking to al-Qaeda, I believe most Americans would not find it controversial that the intelligence community needs to know about it and in fact would expect our intelligence professionals to be aware of it.
Nonetheless, as a matter of law, courts have clearly and repeatedly stated that an express court order is not required for such incidental collection even in the more restrictive criminal context. Contrary to the sound bites of the left, Federal courts also have explicitly held that such incidental collection in criminal cases does not violate the Fourth Amendment, United States v. Figueroa, 757 F.2d 466 (2d Cir. 1985). Courts have traditionally given even more deference in the context of foreign intelligence gathering.
So it is no “misrepresentation” to point out that requiring a court order to protect against such incidental collection would give greater protection to foreign terrorists than Americans get under criminal law — it’s a demonstrable fact.
Second, Klein was correct in his original contention that the bill recently passed by the House of Representatives “would require the surveillance of every foreign-terrorist target’s call to be approved by the FISA Court.” It is true that one section of the bill states the “clarification” that such an order is not required, but that’s not the end of the story.
Anyone who understands how FISA works in practice or how the bill is intended to work as a whole understands that a court order is necessary to compel the cooperation of third parties to actually conduct the surveillance and provide clear liability protection for assisting the government. Without such protection, third parties are unlikely to cooperate, especially after being subjected recently to baseless and unfair attacks. Such court orders are expressly provided for later in the bill.
The so-called “emergency” provision of the House Democrats’ bill includes no liability protection, rendering it practically meaningless, and would in any event ultimately require a subsequent court order. As a legal and practical matter, a court order would be required to conduct basket surveillance under the bill. I find it ironic that the same critics who have so vehemently opposed protecting third parties from liability are now arguing that a court order is not necessary.
Third, the requirement for a court order is but one reason why the Democrats’ bill will not provide the speed and agility the intelligence community needs to act against potential real-time terrorist and other threats. Director of National Intelligence Admiral Mike McConnell has spoken publicly about how ensuring that the complex requirements of FISA are met has harmed our ability to protect American troops. The House bill would not only compound the problem, but actually put courts in the unprecedented position of supervising intelligence professionals and potentially our soldiers. The Constitution always has recognized that operational responsibility for national security is the province of the Executive Branch, and it should stay that way.
It’s hard to imagine General Eisenhower going to court to ask for permission to conduct the D-Day invasion on the off-chance Americans might be on the beaches of Normandy. Yet this is exactly what Democrats want to force Admiral McConnell to do to conduct terrorist surveillance.
At the end of the day, we should be honest that this is not a legal debate, but a political one. It highlights the fact that Democrats believe that lawyering-up foreign intelligence to guard against every imagined or potential civil-liberties concern is more important than ensuring that we have the full capability to conduct quick and effective surveillance of foreign al-Qaeda targets in foreign countries. I’ll welcome that debate anytime.
— Peter Hoekstra (R., Mich.), is the top Republican on the House Permanent Select Committee on Intelligence.