Why Congress Must Renew FISA Immediately: If It Dallies, National Security Professionals Will Not Be Able to Protect America From Terrorism in the Interim

By DOUGLAS KMIEC

Tuesday, Jan. 29, 2008
While Barack Obama was collecting the endorsements of Kennedys, the story of genuine substance today was occurring in the Senate: By a vote of 48-45, Senate Democrats blocked closing debate on the renewal of the law providing the authority for the gathering of foreign intelligence.

The current version of the Foreign Intelligence Surveillance Act (FISA) expires in a few days, on February 1. When it does, we won't need a speech to tell us that the state of the union is not good, because it could be described in a single word: unprepared. When the clock strikes midnight on the 31st, national security professionals will no longer be able to fully protect the nation from terrorist plots.

As Governor Romney is fond of saying, Washington is broken. Whatever rhetorical force that point had before, now it really should hit home. Yes, it is a busy time, when we are confronting an economic challenge of surprising proportion and an interesting presidential primary. Unfortunately, it is also an ideal time for terrorists to take advantage.

For this reason, it is vital that Congress act promptly to put the nation's terrorist surveillance program on a legally sound and reasonably permanent footing. When Congress last asked for more time in December, there were inconsistent House and Senate versions of the legislation to be renewed. There still are, but as I will explain, the Senate has the better of the argument. Moreover, if Congress yet again fails to act, it will only preclude intelligence personnel from opening new files and put the nation at risk.

Democratic and Republican Leaders Already Agree On the Three Key Points

This is not a situation where the senior members of the administration and Congress are in disagreement. Both Senator Rockefeller and Senator Bond, the Democratic and Republican leaders of the Intelligence Committee, concur in the essential elements needed in the new legislation, and it has been largely drafted. Here are the changes upon which the Senators have agreed:

First, FISA -- created in 1978, and in desperate want of updating in light of new technology - needs to be clarified to state that any communications between foreigners that happens to pass through U.S. telecommunications switches can be collected without the necessity of getting a court order.

Second, FISA ought to affirm the Fourth Amendment protections of U.S. citizens against warrantless search and seizure, when citizens are specifically targeted. At the same time, it is important that constitutional understanding not be turned inside out to mean that a warrant is required any time a US citizen's telephone number or conversation happens to pop up in the general monitoring of terrorist activity, either here in the United States or outside it.

Third, the legislation needs to extend immunity to the telecommunications companies who previously stepped up to protect America by allowing surveillance at the Administration's certified request. The failure to supply this immunity, or the decision to write it less comprehensively than necessary, will simply discourage such cooperation in the future and enfeeble our intelligence-gathering capabilities.

While this immunity is a sticking point, it should not be, both because of the value of the telecoms' assistance to our security, and because there is a good argument that the existing lawsuits are without merit even under existing law. A provision in the current statute, codified at 18 U.S.C. section 2511(2)(a)(ii)(B), exempts telecoms from liability for warrantless monitoring if the Attorney General gave them a certification concluding such monitoring to be legal. Even frivolous lawsuits, however, are not costless and in this case, routine court discovery could also imperil state secrets. Senator Feinstein has thoughtfully suggested a compromise amendment that would allow the telecoms to plead "good faith," but in truth that's self-evident by their record of assistance. Senator Specter would substitute the government as defendant in any lawsuit, but again, given the highly classified nature of the monitoring, and the need to maintain the cooperation of the telecoms, there is no justification for not staying clear of litigation altogether which a cleanly drafted immunity provision would do.

Intelligence committee chair Jay Rockefeller and Director of National Intelligence Mike McConnell agreed, as I say, to all these provisions, including responsible immunity for telecoms, late last year. With this bipartisan agreement in hand and the overriding need for the new law too plain to be denied, there is no reason to delay - other than to accommodate the politicking of Senators Obama and Clinton.

Longtime opponents of the legislation like Christopher Dodd and Russ Feingold only want a one-month delay to see if they can find the votes to renege on the protection of the telecoms from the ill-conceived and overstated lawsuits. Senator Reid should say "No," for they already had extra time and then some. The majority leader already did his duty by ensuring appropriate oversight via the Foreign Intelligence Surveillance (FISC) Court and by convincing the President to compromise on a key term in the new law: That term requires the laws' re-examination and renewal in six years, which will necessarily keep the President and Congress working together.

Reviving the Old House Version of the Legislation Would Be A Serious Mistake

Moreover, it is pointless to resurrect the House-passed version of the legislation, for it is woefully inadequate to the threat we face. Requiring a particularized court-approved warrant based on probable cause in every circumstance may sound benign, since it is familiar to the domestic criminal justice process. Yet the prevention of a terrorist attack upon a large population base is not like fighting ordinary crime. The Administration has always conceded the necessity to obtain an individualized warrant when a US citizen is specifically targeted. To require more is to make the Constitution the proverbial suicide pact. In addition, the House version's retroactive reporting specifications, whether intentionally or not, would far too greatly risk exposing classified programs and activities.

There is general agreement on most of the legislation, including topics such as increasing the number of FISC judges from 11 to 15; providing additional personnel to both the FISC and government agencies responsible for making and processing FISA applications; creating an electronic filing, sharing, and document management system for handling this highly classified data; and mandating training for all government personnel involved in the FISA process.

Protection of the Public Must Trump Partisanship When It Comes to FISA

Partisanship must be set aside. If Senators Dodd and Feingold, or even presidential rivals Clinton and Obama, want to reserve a right to object to constitutional claims that go beyond the scope of the legislation, that is fine. But no one should indulge the pretense that the Congress-Executive tension that is built into the constitutional structure, as a matter of checks and balances, can ever be definitively settled.

As we used to say in the 1960s, when facing the Cuban missile crisis, "This is not a drill." If the House and the Senate must spar, let them do it over the economic stimulus package. Frankly, whether we get a check to encourage buying some gizmo in six months or not is far less significant than the first duty of government: the nation's defense. It would be irresponsible for Congress not to act now, before the stopgap legislation expires in less than a week.

One thing is for sure: If we don't act, our enemies will.


Douglas W. Kmiec is Chair and Professor of constitutional law at Pepperdine University. Previously, he was constitutional legal counsel to Presidents Reagan and George H. W. Bush.

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