Politics & Policy

Finally, a Surveillance Pass

The long FISA-reform road to a safer America.

By an overwhelming bipartisan margin, the Senate voted to restore critical legal authority to collect intelligence against foreign enemies committed to killing Americans. It is a victory for national security and a testament to President Bush’s perseverance.

The intelligence-reform bill, which updates the Foreign Intelligence Surveillance Act (FISA), also grants immunity from suit to telecommunications firms that patriotically answered the government’s call for help after the 9/11 attacks. The immunity effectively ends some 40 lawsuits, in which administration opponents targeted the industry as a deep-pocketed proxy for their political dissent. (Again, though I am a longtime critic of our surveillance laws, I note, for the sake of full disclosure, that my wife works for Verizon.)

The legislation had already passed by an equally impressive margin in the House. The president will sign the measure Thursday morning.

Surveillance reform has been a pitched battle for nearly three years. It became a rallying cry for the antiwar Left in December 2005, when the New York Times exposed a top secret program in which the National Security Agency, without seeking court permission, monitored international communications by suspected terrorists that crossed U.S. borders.

The NSA controversy had much more to do with politics than policy. Electronic penetration of enemy communications has been a staple of warfare since the Civil War. Such wartime presidents as Wilson and FDR made copious resort to it. Despite FISA, which created a court to oversee national-security monitoring inside the U.S., federal courts (including the appellate tribunal created by FISA) had held that presidents maintained constitutional authority to conduct warrantless monitoring of hostile foreign agents. That was the position of President Carter, who signed FISA in 1978, and President Clinton, who, after authorizing warrantless searches, signed an amendment which extended FISA to such searches.

The Constitution permits warrantless searches in exigencies far less consequential than protecting the nation against foreign attack. Indeed, highly intrusive searches of not only property (including computers with stored email) but also of American citizens crossing our borders have long been routine. Moreover, in marked contrast to Watergate era domestic spying abuses, the Bush administration briefed the relevant congressional leaders of both parties throughout the NSA program’s duration.

None of that mattered to privacy extremists and anti-Bush activists. Once the program was exposed, they slandered a vital effort to safeguard the nation as a “domestic spying” regime that targeted ordinary, law-abiding Americans. Their allies in Congress didn’t dare try to shut the program down, though, because they well knew those ordinary, law-abiding Americans — Americans who understood that 9/11 happened precisely because overseas terror masters used today’s communications networks to guide the activities of jihadists they’d embedded in our midst — want our intelligence community to conduct aggressive surveillance.

That, however, did not chagrin opponents. They did what they always do when democratic means are unpromising: they marched into court. And when suing the government proved frustrating because of standing requirements and state-secrets restrictions, they simply sued the telecoms.

The billions in legal fees and potential liability created a powerful incentive against industry cooperation in the government’s anti-terrorism efforts — risking the public’s loss of the nation’s top experts in the critical struggle to maintain our edge over ruthless enemies who’ve proved adept at exploiting communications technology. That mattered not the slightest to the hard Left which calls the modern Democrat tune — to say nothing of the trial lawyers who fill the party’s coffers and stood to rake in staggering pay-days from the litigation.

In 2007, the politicized dispute over the NSA program became further and even more perilously entangled in our national security. A ruling by the FISA court radically altered decades of surveillance law. A judge reasoned that breakthroughs in telecom technology — by digitally routing through American switches even communications that take place entirely outside the U.S. — suddenly brought these so-called “foreign-to-foreign” contacts under the supervision of federal judges.

This was a perversion of FISA, which was designed to provide due process protection to Americans inside the U.S. while continuing to allow American intelligence agencies to gather information outside our country without restriction. By bringing millions of exclusively foreign communications under FISA’s arduous and outdated procedures, the FISA court ruling threatened to shut down overseas intelligence-gathering — even as al-Qaeda and other jihadist groups were known to be plotting reprises of 9/11.

This proved too much even for Democrats, especially the remaining adults who perceived the damage opposition to intelligence gathering portended for their 2008 prospects. They agreed to a fix, called the Protect Act, before the August 2007 summer recess. But the Democrats’ agreement was grudging and temporary — scheduled to sunset in six months, during which they vowed to “improve privacy protections” (translation: create new due process rights for alien jihadists) and scrutinize the telecoms’ abetting of George W. Bush’s “illegal spying.”

Nevertheless, as the sunset loomed and members of the Senate Select Committee on Intelligence (SSCI) familiarized themselves with the classified information regarding the NSA program, the telecoms’ good faith became manifest — so much so that the a proposed permanent intelligence reform, which included telecom immunity, passed the Democrat-controlled SSCI by a 13-4 margin.

Yet, the House leadership was obstinate. The Pelosi Democrats allowed the Protect Act to lapse. This was Russian roulette security. Sure, surveillances against known terrorist groups begun under the Protect Act were able to continue for up to a year (meaning they would not begin to lapse until August 2008), but surveillances of new terror threats, which emerge constantly, had no such dispensation. If, for example, a newly discovered terrorist group in Iraq were to plot operations against American troops there, Democrat leadership was content to require our military and intelligence agents to make an application to the FISA court in order to monitor.

This astounding, untenable position was driven by one thing and one thing alone: telecom immunity. Democrat leadership — including Sen. Barack Obama, the party’s standard-bearer — was enthralled by the lawsuits: As their shock troops portrayed the administration as lawless, their trial-lawyer benefactors stood to profit handsomely. These petty concerns were elevated over the safety of Americans, which is dependent on robust spying and the willing assistance of the telecoms.

Americans should not soon forget that.

As the August 2008 lapsing of Protect Act surveillances loomed, however, Democrat leadership’s position became unsustainable. The Senate, for all its bluster, had easily passed the SSCI bill, and it was well-known that Democrats in the House would have done the same thing if Speaker Pelosi had allowed the bill to come to the floor. Behind the scenes, congressional negotiators scrambled for a face-saving compromise. The White House gave them a fig-leaf here and there, but it hung tough on the big-ticket items: streamlining FISA’s antiquated process, restoring the capacity to collect intelligence overseas without judicial interference, and telecom immunity.

The Democrats caved. Even Obama, who had bloviated about filibustering telecom immunity when he needed the MoveOn.org wing to secure the nomination, folded meekly when faced with the prospect of defending the indefensible before the general electorate. A compromise bill — substantially indistinct from the SSCI measure — passed in the House by a whopping 293-129 vote. Finally, on Wednesday, the Senate similarly approved it by more than a two-to-one margin (69-28).

The bill (as I’ve previously detailed) is very far from perfect. It increases the FISA court’s role in micro-managing collection standards. It unleashes a bevy of inspectors-general to probe the NSA program which congressional committees have investigated up, down and sideways. It hamstrings the CIA and NSA in monitoring terror operatives who happen to be U.S. citizens (foreign-intelligence services, by contrast, are unrestricted). Worse, the bill includes an unconstitutional provision which purports to divest the president of authority to eavesdrop on foreign agents without seeking a judge’s permission — authority given to the president by the Constitution, which consequently cannot be removed by a mere statute.

Those flaws aside, however, Americans will be safer come Thursday because the president stuck to his guns, with invaluable assistance from Attorney General Michael Mukasey and National Intelligence Director Michael McConnell — straight-shooters respected on both sides of the political aisle who put their considerable credibility on the line for the simple, transcendent purpose of protecting Americans.

Well done.

National Reviews Andrew C. McCarthy is author of Willful Blindness: A Memoir of the Jihad.

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