Keep the Warrants Out of Foreign Terrorist Surveillance

Congress is currently embroiled in a debate over how to amend the Foreign Intelligence Surveillance Act. At the heart of this debate are the powers of the co-equal branches of government and an out of date statute which hampers our ability to monitor the activity of terrorists. Congress should act swiftly to enact the Senate Intelligence Committee’s FISA modernization bill which allows our intelligence agencies to target foreign terrorists located outside the U.S. without interference from a judge.

First, it is critical to bear in mind that this debate is about a statute and its outdated language. FISA creates a legislatively mandated procedure for the Executive to follow when conducting foreign surveillance. In fact, until Congress passed FISA’s predecessor bill in 1968 and FISA itself in 1978, they never saw fit to regulate electronic surveillance. Similarly the courts rightly left decisions about spying to the Executive who bears the political responsibility for his acts and has the competence to make expedient decisions regarding threats to the nation’s security.

The current FISA debate is an outgrowth of the controversy surrounding the NSA’s terrorist surveillance program and its mischaracterization as “domestic spying.” Central to the effectiveness of this program is the NSA’s monitoring of non-citizens communications occurring outside the United States. Under FISA’s terms intelligence gathering which occurs overseas is exempted from judicial oversight. This makes sense —few American’s want the CIA and NSA to run to the courts for a warrant each time they want to monitor a foreigner’s phone call especially when such foreigners abroad do not enjoy Constitutional privacy rights.

So if the calls are foreign, how has the debate become one about “domestic spying?” Quite simply, times have changed and technology has advanced. Since FISA was passed in 1978 overseas communications have become increasingly complex. Oftentimes, a phone call placed between foreign parties is routed through equipment housed within the U.S. As a result, a judge recently interpreted those facts to mean that such routed communications are not foreign, and therefore require court authorization to be monitored.

In August Congress reacted to this damaging development by passing the “Protect Act” which removed the absurdity associated with requiring such warrants; however this fix is set to expire in February of 2008, prompting the current legislative debate.

To understand what is at stake, consider how dangerous the situation was prior to the “Protect Act.” In July of 2007, if two members of al Qaeda, one in Afghanistan and one in Pakistan were chatting on their cell phones and discussing their upcoming bomb plot, the NSA would have no problem listening in on that phone call. However, if that call was routed through equipment in the U.S., which happens with relative frequency, the monitoring would not be legal and would need to be put on hold until a warrant was authorized. The terrorist plotting could continue but our military and intelligence officials would need to stop listening until a judge said their monitoring was authorized. An absurd result indeed.

Sadly though, this result is not only possible when the “Protect Act” expires it is in fact the goal of Senator Leahy who offered a modification to pending legislation (embodied in the Judiciary Committee’s version) which will require intelligence agencies to halt all gathering of foreign intelligence while their warrant applications are on appeal. Quite simply, under Leahy’s proposal one judge could shut down necessary intelligence gathering and it would stay shut down unless an appeals court could reverse the decision.

Now opponents will argue that there are emergency provisions which allow monitoring to occur for a limited period of time with after the fact judicial authorization. What they leave out though, is the fact that such emergency procedures require the authorization of the Attorney General. While there is little doubt such a high ranking government official is concerned about the threat of terrorism, one must bear in mind that our intelligence agencies aren’t just monitoring these two terrorists; they are monitoring thousands of foreign terrorists and other foreign agents. Is the American public really demanding that the Attorney General spend his tenure sitting in a monitoring facility with headphones on authorizing surveillance? On the other hand, are we really clamoring for lines of CIA and NSA agents waiting dutifully for ex ante or ex post authorization of their intelligence gathering? I don’t think so. In fact I’m certain that most Americans believe it to be a sad day when we place the privacy of foreigners plotting attacks over our own safety.

As the facts prompting the “Protect Act” bear out, the dated FISA statutory framework created by Congress needs to be changed. With less than three months until the “Protect Act” expires, now is the time for Congress to act to keep our intelligence agencies listening to the enemy, and to keep the warrants out of foreign terrorist surveillance.