Politics & Policy

Let’s Have a FISA Fight

President Bush must not kick the can down the road.

Here’s something I never thought I’d say: Three cheers for Chris Dodd!

With his bid for the Democrats’ presidential nomination canceled for lack of interest, Connecticut’s senior senator is back to doing what he does best: making the United States vulnerable to foreign threats. The editors of the Wall Street Journal report that Dodd is blocking a deal to overhaul the dangerously obsolete Foreign Intelligence Surveillance Act (FISA).

Dodd’s objection is about as counterproductive as it gets to national security. He is unhappy because a far from perfect but comparatively sensible FISA-reform proposal that won overwhelming bipartisan support in the Senate Intelligence Committee would provide telecommunications service providers with immunity from legal liability.

The telecoms, in the wake of the 9/11 atrocity, acceded to the Bush administration’s requests for assistance in carrying out the NSA’s warrantless monitoring of wartime terrorist communications that crossed U.S. borders. This effort, relying on presidential authority consistently acknowledged by the federal appeals courts, did not comply with FISA protocols.

Granting the telecoms immunity, which is not merely the only fair thing to do but the only smart thing to do, would end numerous lawsuits brought by the American Civil Liberties Union, the Council on American-Islamic Relations, and others.

Though portrayed as heroic “public interest” litigants by the mainstream media, the ACLU and CAIR actually represent fringe elements whose agendas are far removed from public safety.

By contrast, national security is a political issue in which all Americans have a stake. Line-drawing between the right of the community to be safeguarded from terrorist attack and the right of individuals to unmonitored communication with our enemies — enemies who cannot succeed absent communication with operatives inside the United States — is grist for the democratic process, meaning all of us weighing in through our elected officials. It is not a matter to be kicked to the courts, where unaccountable judges presume to determine our fate based on the eccentric claims of privacy extremists and jihadist apologists.

Dodd and his colleagues in the Democratic party are desperate to keep the courts front and center. Feeling the heat from their hard-Left base, they would have al-Qaeda operatives given protection against surveillance not only inside the United States but overseas — such that if, for example, jihadists inside Iraq were plotting to kill American marines there, the government would have to seek a judge’s permission before eavesdropping on their communications.

This is so patently absurd and dangerous that even the energetic Leftist Congress which enacted FISA in 1978 did not attempt it, taking pains to exempt intelligence collection outside the United States from the new (and ill-advised) requirement that the president — the constitutional official principally responsible for national security — obtain court permission before monitoring spies and terrorists. The Democrats would obviously prefer to depict such foolishness as the doing of judges rather than a policy choice bearing their own fingerprints.

Thus the Dodd gambit: Just say “no” to telecom immunity while pushing for an 18-month extension of the temporary deal Congress and the administration struck this summer, which permits the CIA and NSA to continue overseas surveillance without court permission.

Currently, that deal is scheduled to sunset in early February. The Democrats’ strategy is transparent. They realize their position underscores how weak they are on national security and how beholden they are to the CAIR/ACLU/MoveOn.org Left, which is more animated by the “rights” of terrorists than the lives of Americans. If they can con the Bush administration into accepting the 18-month extension, that takes the issue off the table for the 2008 election. Not only would Hillary Clinton and Barack Obama be able to avoid being accountable for their party’s unpopular position. The ducking would further help one of them win the presidency, whereupon she or he could help Democrats sculpt a more terrorist-friendly FISA in 2009, when no one is up for re-election and public scrutiny ebbs.

The Bush administration and the Republican presidential candidates should not let them get away with it. FISA needs a major overhaul to make it easier, not harder, to monitor the people trying to kill us. Osama bin Laden doesn’t need to apply to a sharia court before blowing up an American embassy; the president shouldn’t need to apply to a federal court to try to stop him. That is primarily what we have a president for.

Moreover, if we are going to protect American lives, we need the nation’s best telecommunications experts on our side, helping the intelligence community maintain our technology edge over the jihadists. We can’t expect that kind of cooperation if we turn the industry into a defendant, facing ruinous legal costs as a consequence of patriotically answering government’s call for help after jihadists murdered nearly 3000 of us. (Though I have been a FISA critic for years, I note in the interest of full disclosure that my wife works for Verizon.)

The administration must say: No deal. If Democrats are willing to put our lives at risk just to preserve the ability of the ACLU and CAIR to haul the telecoms into court, everyone in America should know that. Senators Clinton and Obama should be forced to defend it, if they dare.

Overhauling FISA is not just essential security policy; for Republicans, it is winning politics. Let Democrats try to explain why — with no American’s privacy at issue — the CIA and NSA should be shut out of thousands of potential enemy communications, totally outside the United States, unless a judge gives his okay.

Let Democrats try to justify the imposition of that impossible, unprecedented bureaucratic burden — a burden that would shut down intelligence collection in the middle of a war even as terrorists target our troops and threaten further attacks on our homeland.

The administration is concerned about letting the current deal lapse. It shouldn’t be. First, the intelligence collection crisis was caused by the FISA court’s imperious decision to give overseas terrorists new protections against surveillance — a decision that reversed nearly 30 years of practice and ignored the FISA Congress’s patent intent. This is the same FISA court Democrats propose to give even more control over national security. It’s time the public learned about the excesses of this secret tribunal and why the president rightly resists the expansion of its role.

Second, as the administration argued in defending the NSA program after the New York Times exposed it in 2005, the president has the necessary constitutional authority, especially outside the United States and particularly in wartime, to order the monitoring of foreigners who have no U.S. privacy rights. If the deal lapses, he should rely on that authority to continue protecting our country. Regardless of what Democrats and the academy say, the “rule of law” does not mean repeal of the chief executive’s Article II powers. Of course the Left, abetted by the media, would scream in protest. That, however, is a fight we should relish and a fight we can win.

The president should refuse to sign any new legislation unless it is a permanent overhaul of FISA that keeps us on offense against the monsters trying to kill us. If Senator Dodd wants to be exactly the kind of asset to the Clinton and Obama campaigns that he was to his own, he should be encouraged. But he certainly shouldn’t be appeased.

Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies

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