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.