The Magazine

Constitutional Spying

The solution to the FISA problem

Jan 2, 2006, Vol. 11, No. 16 • By GARY SCHMITT
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The Foreign Intelligence Surveillance Act (FISA) is a chronic problem. The controversy over President Bush's decision to bypass FISA warrants in the electronic surveillance of al Qaeda operatives has highlighted the act's limitations. But FISA has been a problem ever since it became law in 1978.

Congress passed and President Carter signed the bill regulating electronic surveillance for foreign intelligence collection in the wake of an extended, post--Watergate debate about the so--called "imperial presidency." The debate was given added urgency by reports and official investigations of indiscriminate snooping in this country by elements of the U.S. intelligence community. However, like so much else from that period, the broad arguments about the president's role in the constitutional order were wrong, and the laws designed to correct real problems created a new set of problems.

One irony of today's debate is that so many liberals are now defending FISA. Previously, a common complaint from the ACLU and others was that the secret federal court that issues warrants for foreign intelligence surveillance in this country had become a "rubber stamp" for the executive branch. Out of the thousands of applications put forward by the Department of Justice to the panel over the years, only a handful had ever been rejected. Instead of a check on executive authority, the court had become complicit in its activities-or so it was said.

And to a certain extent that has been the case. Yet the reason for the high percentage of approvals has less to do with deference to executive judgment than with FISA's standard for obtaining a warrant when it involves surveillance of an American citizen or an alien residing legally in the United States. Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the "facts and circumstances relied upon . . . to justify [the attorney general's] belief that the target is an agent of a foreign power" or "engages . . . in international terrorism." And the FISA judges can only grant the warrant when "there is probable cause to believe that the target" is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence.

This shouldn't be news. The inability of the FBI to aggressively pursue suspected foreign agents on U.S. soil was well aired in the 9/11 post--mortems, especially the notorious case of the "20th hijacker," French Moroccan Zacarias Moussaoui. His laptop was in the possession of FBI agents in Minneapolis in August 2001 but, for want of a warrant, was not searched before 9/11.

Though much of the court's workings are classified, there are known instances in which FISA's "probable cause" standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified. Notably, there was the case of Wen Ho Lee, the Chinese--American scientist who worked at the Los Alamos nuclear weapons lab. Lee downloaded nuclear codes and databases from the lab's secure computers. "In the wrong hands," his boss noted, such information could "change the global strategic balance." Despite this, and the fact that Lee had access to a warhead design that had leaked to the Chinese, had visited China in the period when Beijing apparently acquired the data, and had obvious friendly ties to Chinese nuclear scientists, it was judged that a FISA warrant could not be obtained. It didn't matter how grave the damage might be if Lee was actually engaged in espionage; what mattered was the government had no real evidence that Lee was a likely spy.

In retrospect, the fastidiousness shown in the Lee and Moussaoui cases seems ludicrous, and some politicians and experts who have an interest in saving FISA have argued that the law was read too narrowly in both instances. Yet the law is what it is. And certainly it is these same politicians and experts who would be the first to complain about the government not abiding by FISA's standards should a case come to light involving dubious surveillance. Contrary to what many might think, the FBI, NSA, and the permanent bureaucracy at the Department of Justice have supported FISA primarily because it provided a line that they believed protected their organizations from the kinds of public trouble, political second--guessing, and congressional investigations that plagued them in the 1970s. And, for the most part, it has-although at an obvious cost.