The Magazine

But Who Will Surveil the Judges?

The FISA court and its failings.

Nov 5, 2007, Vol. 13, No. 08 • By GARY SCHMITT
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For one who recently returned from Europe, where a colleague and I interviewed an array of domestic security officials in key European democracies, it is a bit of an out-of-body experience to examine the various bills now pending on Capitol Hill that aim to govern how the U.S. government conducts foreign electronic surveillance. While the exact mechanisms for intercepts and wiretaps vary from nation to nation, the overwhelming standard for such collection in Europe is simple: Does it make sense to target someone for surveillance, and is it, on its face, reasonable to do? Overwhelmingly, the judgment about whether it is reasonable is left in the hands of either the executive or an investigating magistrate. Any oversight is minimal.

Now, this may not be a path Americans would particularly want our own government to follow. But it is a useful reminder that there is more than one way for a democracy to address the issue of electronic surveillance and civil liberties.

This month, two new bills governing electronic surveillance were put forward in Congress. The reason for the flurry of activity is that this past spring, a judge from the Foreign Intelligence Surveillance Court--the secret court that was established by Congress in 1978 to oversee domestic wiretapping for intelligence purposes--ruled that the government's program to monitor the emails and calls of foreign targets required warrants. The Foreign Intelligence Surveillance Act (FISA), which set up the court and provided the standard by which warrants could be issued, presumed that its writ would cover collection done in the United States, which at the time almost exclusively meant tapping physical wires. Foreign intelligence would be collected by intercepting radio and microwave transmissions. Yet today, international traffic has moved to fiber optic cables and is regularly routed through the United States. It was the judge's opinion that even though the calls or messages originated overseas and may have even ended overseas, the fact that they were making their way through the United States meant that FISA's more stringent warrant requirements for domestic communication applied.

This brought collection to a screeching halt. The National Security Agency suddenly needed a warrant from the FISA court for each overseas terrorist lead it was tracking, just in case the email system a suspect used might pass through the United States. This proved an impossible task, and in August Congress passed an amendment to FISA which allows the government, without a warrant, to intercept communications it reasonably believes begin or end in a foreign country. The Democratic leaders in Congress signed off on the measure to avoid looking soft on terrorism, but were reluctant to concede that President Bush's earlier, post-9/11 decision to bypass FISA's warrant requirements in intercepting foreign communications possibly involving U.S. citizens was justified. Thus, they added a six-month sunset provision to the bill. The new bills are intended to be a more considered remedy than that short-term fix.

Neither bill is much to write home about. The House's "Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective [RESTORE] Act of 2007" is nearly as convoluted as its title. The act would require the government to petition the FISA court for generalized orders authorizing the electronic surveillance of foreign individuals or groups outside the United States for one year. Spying on Americans abroad would require a specific warrant based on FISA's "probable cause" standard that the person is believed to be a terrorist or an agent of a foreign power. And, if as a result of the approved general surveillance an American came under suspicion, the government would have to apply for a specific court order to continue to monitor that individual's communications.

In addition, the measure sets up a rigorous system of quarterly reporting to the House and Senate Intelligence and Judiciary committees on all applications made to the court and compliance audits conducted by the attorney general, the director of national intelligence, and the inspector general of the Justice Department. And, finally, while the bill would protect telecommunication companies who provide assistance to the government in carrying out further authorized surveillances from civil suits, it does nothing to exonerate those companies who have previously cooperated with the government in conducting warrantless surveillance. They are left on their own to fend off the more than 40 civil suits now pending in the federal courts.

The Senate bill, in that respect, is sounder. It provides retroactive protection for the activities of what even the Washington Post called "patriotic corporate citizens." Also, the Senate's proposed changes to FISA would not require a warrant for conducting surveillance of overseas targets. But the bill still mandates that the FISA court review and approve the procedures designed to ensure that the targets of the surveillance are "reasonably believed" to be outside the United States and mandates that the intelligence community not target a U.S. citizen, whether the collection is acquired here or outside our borders, without a FISA court warrant applying the probable cause standard. And, finally, like the House bill, the Senate bill has added a new layer of reporting and oversight.

Of the two bills, the administration is of course more inclined to favor the Senate's. No doubt the FISA court would approve any reasonable set of procedures to conduct foreign surveillance. And, indeed, the only problem from the White House's point of view appears to be the requirement that a regular FISA warrant be obtained for collecting information against a U.S. citizen even if that person is outside the United States.

But FISA was only meant to apply to wiretaps conducted domestically. Both the Senate and House bills nose the FISA court into overseeing foreign collection--providing a new check on a presidential prerogative. As the FISA court's own court of review stated in 2002:

All the other [federal appellate] courts to have decided the issue held that the President did have an inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

And, contrary to how Congress thinks about these matters today, there was a time when a majority of members thought that the president retained a prerogative in this area. Prior to FISA's passage, for example, the Omnibus Crime Control and Safe Streets Act of 1968 set out the procedures for federal wiretapping. It explicitly stated that nothing in this act "shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack." And when FISA was passed in 1978, the House committee report accompanying the bill noted that the act

does not afford protection to U.S. persons who are abroad, nor does it regulate the acquisition of the contents of international communications of U.S. persons who are in the United States, where the contents are acquired unintentionally.

It's not clear if either measure will pass as it stands. The Senate Judiciary Committee has still to weigh in on the proposed bill, and neither the committee chairman, Patrick Leahy of Vermont, nor the ranking member, Arlen Specter of Pennsylvania, has historically been inclined to give the presidency any leeway in the area of electronic surveillance.

In a perfect (or just more reasonable) world, the House and Senate Intelligence committees would start over. Constantly trying to amend FISA presumes that FISA's underlying structure (with its secret court of review) and its standard for issuing warrants ("probable cause") are worth preserving. We might remember our own system of separation of powers while picking up a thing or two from our European allies. Searches, electronic or otherwise, should be "reasonably" connected to the government's legitimate function of protecting us from terrorist attacks. (Or, in the words of the Fourth Amendment, searches should not be "unreasonable.") As Judge Richard Posner has noted, FISA

retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [The law] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.

Increasingly, we are asking the judges who sit on the FISA bench to make decisions that judges have avoided making since the country's first days--that is, to give opinions on matters that are not directly tied to a real case or provide for any adversarial process. No doubt these judges would take seriously the job of assessing the reasonableness of the various procedures the administration might be required to submit to them under the new laws, but is this the proper task for a judge, let alone judges who operate in secret and are themselves unaccountable? Far better to give the president back the constitutional authorities he has traditionally held and allow Congress to exercise the full powers of oversight that it unwisely delegated to the FISA court back in 1978.

Gary Schmitt is director of the program on advanced strategic studies at the American Enterprise Institute. Previously, he served as the Democratic staff director of the Senate intelligence committee and executive director of the president's Foreign Intelligence Advisory Board.