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The New FISA

Once again Democrats in Congress have been stampeded into granting the president a power he should never have been granted.
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What is at stake in the legislation, signed into law last weekend by President Bush, amending the Foreign Intelligence Surveillance Act of 1978 (FISA)? To answer this question, it's necessary to review how we came to this point.

The Fourth Amendment generally forbids the government to engage in wiretaps or other forms of electronic surveillance of private communications without a prior judicial determination that there is probable cause to believe that unlawful conduct is afoot.

In 1972, in the Keith case, the Supreme Court unanimously held that even in national security investigations the president cannot constitutionally conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.

In 1978, Congress enacted FISA, which established special rules dealing with foreign intelligence surveillance. FISA set up a special "secret" court, the Foreign Intelligence Surveillance Court, to handle these matters, but retained the probable cause and warrant requirements. FISA criminalizes any electronic surveillance not authorized by statute and made clear that it set forth the exclusive means by which foreign intelligence surveillance may lawfully be conducted.

In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and email messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity and without requiring a search warrant from a court of law. When the existence of this program came to light in 2005, critics charged that it violated FISA and/or the Fourth Amendment.

The president and his defenders responded that the NSA program was lawful because (a) Congress had implicitly empowered the president to ignore FISA when it authorized the use of military force after 9/11, and/or (b) FISA is unconstitutional insofar as it limits the President's inherent constitutional authority to act in the nation's best interests in his role as "commander in chief" of the armed forces.

Both of these arguments have been dismissed as groundless by most constitutional scholars, a federal court rejected both arguments and held the president's secret surveillance program unlawful and unconstitutional, and last January the president agreed to have the program overseen by the FISA court, although it was unclear precisely what that court was to do with program.

Recently, the FISA court apparently ruled that it could not lawfully approve at least some of the president's requests to engage in electronic surveillance of international communications because such surveillance was not authorized by FISA. This led to demands by the Bush administration that Congress amend FISA immediately to enable it to carry out this surveillance.

What does the amendment authorize? Until last weekend, FISA prohibited the government from intercepting any international telephone call or email communication involving persons in the United States without a warrant from the FISA court based upon probable cause. The amendment authorizes the government to wiretap or intercept any international communication, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is "directed at a person reasonably believed to be located outside of the United States."

There is no requirement that the government must obtain a search warrant from the FISA court, and no requirement that the government must have probable cause to believe that the person "reasonably believed to be outside of the United States" is a terrorist or even an associate of terrorists. The new legislation empowers the Attorney to authorize such surveillance as long as the purpose is to gather "foreign intelligence" and the surveillance is "directed at a person reasonably believed to be outside the United States."

Why should we care about this law? In general, United States law (statutory and constitutional) does not restrict the ability of the government to search the homes of people in Iraq, to read the mail of people in France, or to wiretap telephone calls in Japan. Why is the new law any different?

When the government intercepts telephone calls and email exchanges between an American in Chicago and a foreign national in Berlin it intrudes upon the privacy of both parties to the communication. Such surveillance invades the privacy of the American in Chicago just as much when the exchange is with someone in Berlin as when it is with someone in Miami. That the surveillance is "directed at a person reasonably believed to be outside the United States" is no consolation to the American in Chicago.

Until last weekend, the law did not define the privacy interest of the American in Chicago in terms of whether he was speaking or emailing with a person in Miami or Berlin. In either case, because the surveillance invaded the privacy of an American on American soil, the government needed probable cause and a warrant.

The simple and proper solution to this "problem" to require the government to obtain a warrant based upon a showing of probable cause whenever it wants to tap a telephone call or read an email exchange involving an American on American soil. That was the law before last weekend and there is no good reason why it should not be the law now.

That Republicans in Congress supported this legislation is unfortunate. That some Democrats supported it, and thus made its passage possible, is nothing short of disgraceful. Just as they were stampeded by trumped up hysteria into authorizing the invasion of Iraq, once again they have been stampeded into granting the president a power he should never have been granted.

"Fool me once, shame on you. Fool me twice, shame on me."

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