Yesterday, I interviewed former federal prosecutor Andrew McCarthy about the fight over FISA reform on Heading Right Radio. McCarthy, who helped put Sheikh Omar Abdel Rahman and several others in prison for their role in the 1993 bombing of the World Trade Center, argued that the expiration of last year’s FISA reform will put the NSA in the unusual position of having to seek warrants for communications with both endpoints outside the US, not involving American persons at all. He explains this at Human Events today:
In 2007, a ruling of the court created by the ill-conceived 1978 Foreign Intelligence Surveillance Act (FISA) required the intelligence community to seek court permission before monitoring terrorists operating outside our country — that is, outside the jurisdiction of United States courts.
Actually, Andy and I disagreed on this; I’ll come back to it in a moment.
Let’s say al Qaeda operatives in Iraq captured a U.S. marine. In effect, our military and intelligence services, while desperately trying to rescue one of their own, would now have to seek court permission in order to eavesdrop on the foreign terrorists who carried out the capture — alien enemies who have no conceivable privacy rights under the Fourth Amendment. Such was the conclusion of an unidentified federal judge, in a ruling that radically altered three decades of FISA theory and practice, a ruling the American people have not been permitted to read. (Just imagine the hue and cry if George W. Bush had secretly reversed the foundations of surveillance law. Here, where the sea-change benefits al Qaeda rather than the American people, the silence is deafening.)
Democrats, of course, have fought every sensible national-security improvement since 9/11. Yet, so preposterous was the notion that the NSA should need a warrant from a judge in Washington in order to listen as, say, a terrorist in Pakistan gives directions to a terrorist in Afghanistan that even Democrats relented — or at least enough of them to enact last August’s “Protect Act.” This stopgap measure (the Left would not agree to more than six months of common sense) enabled our spies to continue spying outside the U.S. without court interference, just as FISA intended.
The FISA court ruling relied on the actual language of the 1978 FISA law. Congress defined domestic communications as those passing through American telecommunications switches — which, at the time, was true. Phone calls passing through American equipment meant that at least one endpoint of the call was in the US and almost certainly involved a “US person” by FISA’s definition. That hasn’t been true for at least a decade, though, as globalization has allowed American telecoms to expand to the point where they carry almost all global communications through their switches.
Still, Congress never updated FISA to reflect this reality. The FISA judge, in what should be considered an act of judicial modesty (Andy McCarthy disagrees on this point), followed the law and pointed back to Congress to get it fixed. Congress did so last year in its FISA reform legislation, after several months of the NSA being in the position to require warrants for strictly foreign communications. However, they stuck a six-month sunset clause on it and promised to deliver a long-term fix before the patch expired.
Now, with the Senate passing just such a bill by a 2-1 bipartisan majority, the House’s Democratic leadership plans to allow the patch to expire out of spite. They won’t take up the bill passed by both Democrats and Republicans in the upper chamber until after they take their Presidents Day holiday. Meanwhile, according to the ruling from last year, the NSA will once again be required to get warrants to intercept foreign-to-foreign communications, something FISA never intended to do.
The 4th Amendment does not apply to foreign enemies of the nation. FISA intended to protect Americans from unwarranted government surveillance. In fact, it intended to preserve the ability of the intelligence community to conduct surveillance without undue hindrance on foreign communications in order to protect the nation. The House has a bill on the table that would restore FISA’s original intent and give the intel community the power they need to watch for signs of attacks from foreign sources.
The House should ensure that the bill gets addressed before they take their break from reality. I can assure them that our enemies will not be on vacation for the next week.
UPDATE: I’ll address two Democratic talking points that have come up in the comments. First, there’s no reason to strip telecom immunity from the Senate bill, since it passed on a 2-1 bipartisan majority. It would pass in the House if Pelosi brought it to the floor, too. Why should a bipartisan solution have to be jettisoned, especially if it would win a floor vote in the House?
Some commenters here blame Bush for not agreeing to an extension, but that’s also hogwash. The expiration date for the FISA reform was imposed by Democrats last summer. They have had six months, plus a two-week extension signed by Bush in January, to resolve this. The House has had the Senate bill since Tuesday. The issue isn’t time — it’s Nancy Pelosi’s refusal to consider the bipartisan Senate bill sitting on her desk, and an extension doesn’t resolve that issue.
If the Democrats can’t meet even their own deadlines, then their incompetence runs much deeper than anyone ever imagined.