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The right fix for FISA |
September 10, 2007 |
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It’s official. In a brilliant article in September’s issue of The Atlantic titled “The Rove Presidency,” Joshua Green writes: “In a world made new by Sept. 11, [Karl Rove] put terrorism and war to work in an electoral rather than a historical context and used them as wedge issues.” No kidding. The latest Rove campaign was on full display the second half of July as Congress rushed to pass appropriations bills and adjourn for the August recess. In a well-orchestrated campaign, Republicans began talking about “increased chatter” concerning an August attack in the U.S. (true, though it didn’t happen) and why we could not prevent it unless we fixed (gutted) the Foreign Intelligence Surveillance Act — a relic from the 1970s that has created a huge “gap” in our ability to intercept foreign-to-foreign communications between terrorist operatives intent on harming Americans (not true). The drumbeat increased in both the Senate and the House — fueled by visits from Director of National Intelligence Mike McConnell to key committee members and leadership. McConnell’s claim that two-thirds of foreign-to-foreign communications cannot be intercepted because of FISA’s restrictions went effectively unchallenged. His over-broad proposal, which undid the careful checks and balances in FISA, competed with a responsible, narrower effort offered by Democratic leaders — and McConnell won. If a silver lining can be found here, it is that the law sunsets in six months. Now comes the challenge: to craft a FISA law that enjoys overwhelming support and replaces the “blank check to Gonzo” that Congress provided just weeks ago. Can the White House be persuaded to negotiate a new law? Not if the wedge politics it played last month persist. But I believe Congress could be persuaded to do so — and to pass it with veto-proof majorities in the House and the Senate. Here’s why. For starters, the new FISA law deals out Congress and the courts, the two bodies entrusted with oversight of the old law. During the debate on FISA, numbers of Republicans expressed discomfort with the broad new grant of authority in the McConnell bill. As long as “foreign intelligence” is the standard, virtually any communications are fair game — the only limits being post-action audits in which the executive branch essentially polices itself. In other words, many Republicans now worry that they gave away the Fourth Amendment, a bulwark against the “big government” they so detest. In addition, there is a growing sense by some members that they were stampeded by the adroit use of politicized intelligence — in this case, a discredited report that suicide bombers planned to attack the Capitol building in August. When the report first surfaced from the Capitol Police, the National Counterterrorism Center and the CIA issued a joint disclaimer of its accuracy. But that disclaimer failed to reach those who were falsely convinced that credible intelligence existed. Those folks were snookered, and their colleagues’ “crying wolf” won’t work again. So what deal could be cut on FISA? Each side wants a few things that make sense. Though the new FISA law grants prospective immunity for telecommunications firms asked to supply phone records as part of the government’s surveillance program, it omits any grant of retroactive immunity to those companies that arguably complied in good faith with government requests. A narrowly drawn retroactive immunity provision, coupled with the prospective stipulation that immunity requires a warrant from a judge, is a possible compromise. On the issue of the program’s approval by an Article III court independent of the executive branch, so-called “basket” warrants tied to specific surveillance objectives — international terrorism or counter-proliferation — should be required. Such warrants would permit intelligence agencies to select targets with flexibility and speed, with approval of targeting criteria rather than actual targets, and would give the telecom companies the clarity and legal certainty they desire. To reassure the public, it would have to be clear that a basket warrant does not authorize indiscriminate data mining of all communications into and out of the U.S. Finally, there is the issue of individualized warrants for Americans. It should not matter whether their communications are intercepted in the U.S. or abroad; the Fourth Amendment’s core principle should apply whenever an American is involved. And in an astounding act of selective declassification, McConnell in late August revealed that the number of Americans under surveillance was very small — “100 or less.” While the revelation is outrageous, it belies White House claims that the FISA process is too cumbersome to permit individualized warrants. The Democrats’ challenge on FISA is to move promptly to a proposal we and enough Republicans can support, so that the White House, with or without Rove, cannot jam another wedge between us. Clearly, it was Rove’s intent to make the recent vote on FISA grist for negative campaign ads in the 2008 cycle, but Democrats denied him that ammo. Republican members and candidates also have explaining to do — about why they would give away Congress’ constitutional duty and gut a carefully crafted, bipartisan law to check and balance unfettered executive authority. After all, the next executive could be a female Democrat! Playing the “fear card” on FISA was shameful. Shame on us if we let it happen again. The American people deserve better. Rep. Jane Harman (D-Calif.) chairs the Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment. ### |
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