Politics & Policy

Fisa Exchange

In his January 14 diatribe on legislation amending the Foreign Intelligence Surveillance Act (FISA), Andrew McCarthy perpetuates the misinformation campaign on this important issue that the administration of George W. Bush has employed so successfully to secure surveillance powers far in excess of what reasonably is necessary to gather foreign intelligence on terrorism.

When viewed through the black and white lenses donned by Mr. McCarthy and other Bush-administration supporters, the arguments become deceptively — and dangerously — simple. In their world, the Constitution plays no role in the debate, and arguments for or against expanded surveillance powers are to be discussed and determined based solely on the Bush Doctrine, that “you are either for us or against us, and if you are against us, then you are for the terrorists.” In this matrix, anyone who dares raise a constitutionally based concern over the scope of or methods whereby the government conducts surreptitious surveillance of phone calls and e-mails is cavalierly dismissed as an “extremist” and a toady for “jihadists.” Thus mischaracterizing the debate, and reducing it to a jingoistic equation, does a great disservice to what ought to be the real debate — based on real facts and real law.

While McCarthy lumps all those who have raised concerns about the scope of surreptitious surveillance by the administration as being concerned with “the right of individuals to unmonitored communications with our enemies,” this is simply not the case. What I and many others, including the Electronic Frontier Foundation, are concerned with is not the “right” of a U.S. citizen in this country to freely communicate “with our enemies,” but rather the “right” of a U.S. citizen in this country to communicate with persons not in this country with the assurance that he is subject to being monitored only if there is a colorable suspicion by the government that the persons overseas are “enemies.” As the law stands now, under the “Protect America Act” signed into law last August and set to expire at the beginning of February 2008, American citizens communicating with persons not in this country have no such assurance.

The current law, which Mr. McCarthy apparently embraces wholeheartedly, affords the government the power to monitor not only communications with known or suspected terrorists (which it should be doing), but any call or e-mail that anyone makes from or into this country. Such monitoring is allowed without having to make any showing whatsoever to anyone (including the federal courts in which Mr. McCarthy holds no faith) that there is reason to suspect any of the parties are bad guys or are discussing any matters even remotely related to our nation’s security.

In the Bush-McCarthy world, all the government must do before engaging in warrantless monitoring of an American citizen’s communications is “reasonably believe” that one party to the communication is not within the United States. Of course, this sweeping power was not stressed by the Bush administration last summer when it pushed the Congress to enact the Protect America Act. To discuss it in these truthful terms might have caused the American people and the Congress to raise questions about it that neither the administration nor Mr. McCarthy wishes to be addressed.

The Protect America Act was predicated on a legitimate and timely concern that in fact needed to be addressed. The 1970s-era FISA law was being interpreted by some judges to require that purely international calls (which do not require a court order) become subject to court review simply because they might be routed through the U.S. This narrow (and in my view inappropriate) application of FISA needed to be corrected. However, the fix in the Protect America Act went far beyond addressing this legitimate problem. While such an unnecessary expansion of government surveillance power may be fine for Mr. McCarthy, it does great harm to public policy in this country — unless policy is to be based on jingoism rather than historically sound and constitutionally correct interpretations of the Fourth Amendment and the separation of power.

Hopefully, because of the six-month sunset provision placed in the law, at some point in the near future these legitimate concerns will be addressed, Mr. McCarthy’s aversion notwithstanding.

Similarly, the Congress should not rubber-stamp an administration demand to fully immunize, retroactively and prospectively, those telecommunications companies that blithely violated the privacy rights of their American customers by improperly turning over all manner of private information on their communications. While such a scenario may meet with Mr. McCarthy’s approval, I and many other citizens would sleep much more soundly knowing that corporations privy to my private information are sharing it with the government according to the law and not in violation of it.

Congressman Bob Barr

Atlanta, Ga.

Andrew C. McCarthy responds:

I’m not certain whether Congressman Bob Barr is more in need of a refresher in constitutional law or a course in remedial reading. When I wrote about “privacy extremists and jihadist apologists” (“Let’s Have a FISA Fight” — NRO, Jan. 14, 2008), I was not talking about Bob and his organization; I referred quite expressly to the ACLU and CAIR.

It may be news to Congressman Barr but it isn’t to most Americans that those organizations have an extensive history, in the ACLU’s case, of taking extreme positions in support of individual privacy at the expense of national security, and, in CAIR’s, of carrying water for Islamic terrorists. Perhaps he hasn’t heard that CAIR, among other things, was started by an arm of Hamas, has a number of members who have been convicted or deported as a result of terrorism investigations, and has published a “Muslim community safety kit” that counsels people on how to thwart FBI investigations. In the U.S. Attorney’s Office Congressman Barr ran, referring to such matters might have been deemed “jingoism”; at the one where I was privileged to work, and where we actually dealt with radical Islam, they were known as facts. (And while Bob repeatedly tries to lash me to the Bush administration, which he thinks helps his position, I’ve been very critical of the administration’s willingness to “dialogue” with terror apologists, as well as aspects of its FISA analysis.)

Moreover, the specific subject of my article was not communications between people in the U.S. and those in other countries. It was, instead, something even Congressman Barr can’t bring himself to defend: the 2007 judgment of the secret FISA court holding that the executive branch must now obtain the permission of a federal judge before monitoring contacts between foreigners outside the United States.

I was not addressing what the confused congressman claims is “the ‘right’ of a U.S. citizen in this country to communicate with persons not in this country with the assurance that he is subject to being monitored only if there is a colorable suspicion by the government that the persons overseas are ‘enemies.’” If he wants to talk about that, though, I am game. There is no such right — certainly not in the Constitution.

That is not just a matter of law; it is a matter of common sense. When you make a call or send an e-mail outside the United States, American law does not govern the other end of the communication. Bob apparently thinks if a U.S. citizen, however innocently, calls a war zone in Afghanistan or a police state like China (where even Google is intimidated into monitoring content), he has an expectation of privacy. Maybe in Barr World, but not in the real world. For over 40 years, “reasonable expectation of privacy” has been the trigger of constitutional protection. That wasn’t my idea, nor was it the Bush administration’s; it is the jurisprudence of the Supreme Court. See Katz v. United States, 389 U.S. 347 (1967). (I frankly think pre-Katz law, based on the concept of trespass rather than privacy expectations, was more faithful to the original meaning of the Fourth Amendment.) In any event, Bob believes that only American authorities should remain deaf and blind while the rest of the world’s intelligence services freely monitor international communications. He’s entitled to his opinion, but thankfully our Constitution contains no such restrictions.

For all his bloviating about the Constitution, jurisprudence is plainly not Congressman Barr’s area. He writes:

The current law, which Mr. McCarthy apparently embraces wholeheartedly, affords the government the power to monitor not only communications with known or suspected terrorists (which it should be doing), but any call or e-mail that anyone makes from or into this country. Such monitoring is allowed without having to make any showing whatsoever to anyone (including the federal courts in which Mr. McCarthy holds no faith) that there is reason to suspect any of the parties are bad guys or are discussing any matters even remotely related to our nation’s security.

Let’s dispense first with the congressman’s misconceptions about my position. First, I do not embrace the current law wholeheartedly (or the Bush administration’s position). I’ve repeatedly argued (see, e.g., here, here and here) — as has, for example, Judge Richard Posner, no lackey for any administration — that the “probable cause” standard, which current FISA law applies, is not constitutionally required and is dangerously over-burdensome in the current threat environment. Secondly, I have a great deal of faith in our courts when they are performing their proper function — more, I think, than Bob does for reasons I’ll get to momentarily. But, as Justice Jackson wrote for the Supreme Court in 1948, addressing the governmental division of labor in matters of intelligence collection,

Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948). Now, maybe Bob would snark that Justice Jackson had no faith in the federal courts. I rather think he — as someone who, like Bob and I, had been a federal prosecutor — properly understood the separation of powers doctrine on which our liberties and security depend.

The higher federal courts have a strong tradition of embracing that doctrine. Congressman Barr claims, absent any authority, that communications which pass through our borders may not be monitored absent court permission. In point of fact, even American citizens who pass through our borders may be subjected to the most intrusive searches without any cause — probable, reasonable or otherwise. See, e.g., United States v. Montoya De Hernandez, 473 U.S. 531, 537-38 (1985). That’s because, as the Supreme Court has acknowledged, the executive branch, not the judiciary, is custodian of the nation’s “inherent sovereign authority to protect its territorial integrity.” Torres v. Puerto Rico, 442 U.S. 465 (1979). For 30 years, furthermore, the Supreme Court has held that all international postal mail may be searched without warrant. United States v. Ramsey, 431 U.S. 606 (1977). Bob might want to take a look at Ramsey. In it, then-Justice Rehnquist noted that an American who physically carries a letter — i.e., a communication — across the border is subject to having its contents read by the government without a warrant. From this premise, he deduced: “There is no reason to infer that mailed letters somehow carry with them a greater expectation of privacy than do letters carried on one’s person.” Nevertheless, in Barr World, though the government gets to read your communications without a warrant and absent any cause when you try to carry or mail them out of the country, it somehow needs a judge’s permission when you try to do exactly the same thing by dialing a phone or hitting “SEND” on your computer — even in wartime and even if it has reason to suspect you are in cahoots with the enemy.

Congressman Barr would have you believe that, in contrast to me, he has absolute faith in courts. Yet, we don’t hear much about the judges when they disagree with him. So it is that he conveniently omits the most authoritative teaching we have on the president’s constitutional authority to conduct warrantless national security monitoring: the view of the FISA Court of Review. In 2002, despite FISA’s then being on the books for nearly a quarter century, that tribunal declared:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information…. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

In re Sealed Case, 310 F.3d 717 (FISA Court of Review 2002) (citing United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)).

That is not a position invented by the Bush administration or me. It is the position of the highest, most specialized court created by the FISA statute with which Bob is so (selectively) infatuated. It reflects, moreover, the position of the Carter administration (whose attorney general, Griffin Bell, asserted when FISA was enacted in 1978 that the statute did not, and could not, vitiate the president’s constitutional authority to conduct warrantless surveillance of foreign national security threats), and of the Clinton administration (whose Deputy Attorney General, Jamie Gorelick, took precisely the same position when FISA was amended in 1994 to include physical searches).

Finally, Bob is wrong about one other important point. He ludicrously asserts that, like the Bush administration, I have resisted a “truthful” discussion of these principles in order to hoodwink the American people and the Congress from raising questions. I would have expected better from Bob, especially since I have debated these very issues with him twice before in public forums. As noted above, I have vigorously contended, repeatedly, that FISA should be scrapped, or at least radically overhauled, because it leaves us intolerably vulnerable to 9/11-style attacks. I’ve been critical of the administration for not aggressively pressing these arguments because I believe the American people, once fully informed, would recognize that Bob’s side of this debate is dangerously wrong. Our citizens would, in my opinion, demand that our law be modified to facilitate government’s ability to monitor international terrorists — who, as 9/11 shows, cannot succeed in attacking us without the help of operatives inside the United States.

Congressman Barr obviously disagrees with that, and I don’t question his good faith in doing so. But it’s unbecoming of him to question mine.

– Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies. His forthcoming book, Willful Blindness — A Memoir of the Jihad, will be published by Encounter Books on March 10.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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