In his State of the Union address, President Bush pointedly reminded Congress that, if it fails to act by Friday, last August’s stopgap measure to prevent disruption of vital intelligence-collection will expire. “We’ve had ample time for debate,” the president concluded. “The time to act is now.”
His assessment could not be more correct. The ill-conceived Foreign Intelligence Surveillance Act (FISA) is outmoded. An overhaul has long been under consideration, and there is strong bipartisan consensus on several of its major points. Yet top Democrats are resisting a solution.
The point of FISA was to protect Americans inside our country’s borders from unwarranted national-security surveillance. Under the law the government had to show a secret court that its target was a foreign spy or terrorist before it could eavesdrop at home. Last year, however, a FISA-court decision required judicial authorization even in those cases where the government sought to monitor terrorists communicating with each other outside the United States. Americans have not been permitted to learn the name of the judge who issued the ruling that drastically altered three decades of FISA practice, much less read the ruling itself. The ruling prompted Congress to enact the Protect America Act, which reiterated that FISA restrictions do not apply to surveillance of persons reasonably believed to be outside the United States.
But the Protect America Act was a stopgap rather than a solution. It was set to expire in six months, giving Congress more time to dawdle. In the interim, the Senate Intelligence Committee, with overwhelming bipartisan support, proposed an imperfect but generally sensible reform package. It makes permanent the Protect America Act’s reaffirmation that foreign-to-foreign communications fall outside FISA-court review. It streamlines the burdensome FISA-application process, which impedes the monitoring of terrorists as they ruthlessly exploit the speed of modern communications technology. And it provides immunity from civil lawsuits for those telecommunications companies that cooperated in good faith with the NSA’s surveillance program following the 9/11 attacks.
Some Democrats oppose the legislation because they want the FISA court to have more authority. They laud it as a responsible manager of intelligence collection, even though tribunal is unaccountable and has a spotty record. (The most important part of the Patriot Act was its dismantling of the “wall” between agencies that obstructed intelligence gathering before 9/11. The FISA court tried to undo that part of the act, but was thankfully unsuccessful.) We have less confidence in the judiciary’s ability to manage wartime intelligence operations.
Other Democrats oppose the measure (Sen. Chris Dodd is threatening a filibuster) in no small part because of the telecom immunity provision. This objection is specious. The bill provides protection only for companies that acted on assurances from the administration that the program was lawful. If the companies cannot bank on such assurances, they have no incentive to cooperate in the intelligence collection that is a must if Americans are to be protected. But when the aroma of torts is in the air, Democrats find it difficult to resist their trial-lawyer constituency, who do so much to keep Democratic campaign coffers full.
Americans want security from mass-murderers. FISA reform will increase our security, while aligning the responsibilities of different parts of our government with their capacities. Congress should enact that reform — permanently.