Politics, it is often said, is the art of the possible. By that measure, national security has been served by the compromise finally struck Thursday to overhaul our outdated surveillance laws. The measure should be approved by both houses of Congress in the coming days. President Bush will sign it.
Here is the bottom line: Our intelligence agencies will once again have authority to conduct aggressive monitoring of foreign powers, including terrorist organizations, which threaten the United States. In particular, this will be the case overseas — that is, when foreigners located outside our borders communicate with each other. The Central Intelligence Agency and the National Security Agency will essentially be able to collect foreign intelligence without interference from the courts, the status quo ante that was U.S. law for decades before being upset by a secret court ruling last year.
Moreover, the telecommunications companies which patriotically complied with administration requests for assistance in the emergency conditions that obtained after nearly 3,000 Americans were mass-murdered in the 9/11 attacks will receive retroactive immunity. That is, they will be relieved of the potential billions in liability they (and their shareholders and customers) faced in scores of lawsuits.
The telecoms were sued by the ACLU and other privacy eccentrics because they cooperated in the NSA’s warrantless surveillance of suspected international terrorist communications that crossed U.S. borders — a program the legality of which is richly supported by precedent. Consequently, the American people will be relieved of the vulnerability they would face if industry’s top information technology experts were disincentivized from assisting in our security. (While I have long been a critic of our surveillance laws, I note once again, in the interest of full disclosure, that my wife works for Verizon.)
Contrary to the sky-is-falling hysteria we are likely to hear in the coming days, this immunity is not “blanket.” It benefits only private actors. That is as it should be. This controversy involves the executive and legislative branches of government fighting over ultimate control of surveillance authority. Private actors who merely complied with ostensibly lawful requests should never have been pawns in that political battle. And only those private actors who can show, by “substantial evidence” that they were complying with a written request from government will be afforded immunity.
The intelligence overhaul is very far from perfect. There are two core flaws in our surveillance law, namely, the “probable cause” trigger for monitoring and judicial oversight. The compromise leaves the former unaddressed while exacerbating the latter.
Probable cause is a courtroom standard, the quantum of proof ordinarily required to justify government intrusion on the privacy of an American’s home or private papers. It means the government must have strong indications that a crime has been committed before conducting such a search.
The standard has no place in national-security surveillance against foreign threats. If you have probable cause, you already have strong indications that someone is a threat. That’s too late. The challenge in today’s threat environment, dominated by international terror networks that embed sleeper cells among us to carry out mass-destruction attacks, is to figure out who is a threat. That cannot effectively be done on a probable cause standard. The Constitution does not require one — it mandates only that searches be reasonable — and hence most security searches (such as those occurring as one enters the country or tries to board an airplane) do not require probable cause, much less a judicial warrant.
But the political reality is that the civil libertarian extremists have made dramatic inroads since 9/11, thanks to the regimentally sympathetic ear they get from the mainstream media no matter how absurdly alarmist their claims. Further, as the administration failed to mount an effective defense to slanderous claims that it misrepresented intelligence prior to the invasion of Iraq, its political opponents have tirelessly questioned its candor and competence. In this resulting climate of mistrust, there was no practical possibility of rolling back the high evidentiary hurdle — especially when the administration, far from complaining about it, has seemed oddly untroubled about living with probable cause.
In the compromise legislation, those same political considerations result not only in a failure to rollback judicial participation in intelligence collection but in a marked expansion in the role of the FISA court (the secret tribunal created by the 1978 Foreign Intelligence Surveillance Act).
The compromise does do away with the insanity of requiring judicial authorization for surveillance of so-called foreign-to-foreign communications (i.e., where each participant in a conversation is a non-American located outside the United States). Nevertheless, the attorney general and the director of National Intelligence will now have to submit their “targeting” and “minimization” procedures to FISA Court review. The judges will have to be satisfied that foreign surveillance is not a pretext for spying on Americans, and that information incidentally collected on Americans in the course of monitoring aliens is used only for pre-approved intelligence or law-enforcement purposes.
If the unaccountable judges are not satisfied, they — rather than the politically accountable officials we elect to provide for our national defense — can deny authorization for intelligence collection. This is alarming. As we saw from the Supreme Court just last week, our judges are fully capable of elevating the supposed rights of alien jihadists over the public-safety interests of Americans. Which brings us to another deep flaw in the compromise: The new law purports to make congressional statutes — i.e., the laws that impose judicial oversight — the “exclusive means” by which electronic surveillance may be conducted.
Congress is throwing down the gauntlet. Foreign intelligence collection is part of the foreign-affairs power designed in our system to be a plenary executive responsibility. Moreover, the federal appellate courts — including the FISA Court of Review, the highest court created by Congress specifically to rule on surveillance matters — have uniformly held that, regardless of FISA, the president is vested by Article II of the Constitution with the power to order warrantless surveillance against foreign threats to national security. Yet, Congress is hellbent on grabbing this authority, despite the fact that constitutional powers cannot be reduced by statute.
This is the price extracted by liberal Democrats. They know the administration wants immunity for the telecoms, which will be a boon for the country but a blow to the pocketbooks of their trial lawyer benefactors. To make the deal, they want President Bush to cry “uncle” — to concede that presidents act illegally if they direct eavesdropping that does not hew to restrictions prescribed by Congress. And given that they have been willing for months, in a time of jihadist war, to expose the nation to the dangers of degraded intelligence capabilities, the administration knows the Democrats mean business. This is their line in the sand.
It is imperative that we have scour the globe for intelligence. This bill will restore that authority, so the president will sign it … and hope. Hope that in a future crisis, if a president ever does have to order surveillance outside statutory guidelines, reviewing courts will recognize that Congress is powerless to strip Article II power. Hope that reviewing courts will try to harmonize the compromise bill with the Constitution by embracing a highly technical interpretation of the former: construing it as binding whenever a president resorts to statutory processes to conduct surveillance (i.e., the vast majority of the time), but not eliminating — because it is constitutionally powerless to eliminate — the president’s inherent authority to respond as necessary to a true emergency.
Happily, there is good reason to think such an emergency will never arise. Among the best features of the compromise is the emergency-authorization provision. Henceforth, if the attorney general is satisfied that a crisis situation exists calling for surveillance under circumstances where there is no time to seek court permission, the AG may authorize the surveillance. A court would have to be notified that monitoring is under way, and an application would then have to be made within seven days to the FISA court, which would have 30 days to consider it. In the interim, we could gather any urgently needed intelligence. The arduous rungs of pre-approval that bogged down even emergency surveillance in the past have been streamlined.
In the end, it is a flawed deal, but a good one — the best we could have hoped for under the circumstances. For months, the administration has been under great pressure to cave as House Democrats, buoyed by their White House hopeful, Barack Obama, gambled with our security — refusing even to permit a vote on a Senate measure, passed with overwhelming bipartisan support, that would have restored intelligence-collection authority and immunized the telecoms. President Bush deserves enormous credit for facing them down. Americans will be safer because he did.