For all the fire-breathing rhetoric we can expect to hear about modernization of the Foreign Intelligence Surveillance Act in the coming months, last week's introduction by House Democrats of their bill on the subject makes one thing abundantly clear: The Democrats and the Bush administration aren't very far apart.
But don't tell anyone. It would spoil all the fun.
The Democrats really want to tell people that, as the House Intelligence Committee put it in a press release, they are "protecting innocent Americans from warrantless eavesdropping." The administration, for its part, would love a fight in which it could brand Democrats as soft on terrorism--yet again--if they don't roll over. And to be sure, there are important differences between the administration's favored approach, enshrined in a temporary law over the summer, and the prospective House bill.
But let's be clear: Under either approach, the National Security Agency will have the legal authority to listen to your calls without first going to the Foreign Intelligence Surveillance Act Court to get a warrant. As long as the agency is targeting people overseas who happen to call you, it'll be tough noogies. Under current law, which the administration wishes to make permanent, the FISA Court plays only a tiny retroactive role in approving procedures for overseas surveillance; under the House Democrats' proposal, it would play a slightly-less-tiny role in rubber-stamping programs. And except in those most general capacities, under neither system would it play any role in protecting either individual targets of those programs or those whose communications get swept up incidentally under them.
With such a modest gap between the two poles, a deal between them should be very doable----and there is wisdom in the argument of both sides from which a constructive compromise should draw.
The administration is correct that it should not need FISA warrants for overseas wiretaps. Its preferred means of removing the court from this field is a bit too blunt, but its basic idea is right: If the government is collecting intelligence against people abroad, it should not be going to the court first. If those targets happen to call or e-mail Americans inside the United States, the protection for those Americans lie in what are called "minimization requirements--"--rules prohibiting the retention by the intelligence community of material that is not legitimate foreign intelligence.
The Democrats are trying to construct a somewhat enhanced judicial role. But the one they've come up with would actually have only marginal benefit for individual privacy rights over the administration's proposal. The House Democrats, like the White House, would exempt from FISA any communications in which both parties are located abroad and are not U.S. persons--that is, citizens or resident aliens. Their bill leaves unchanged the status of U.S. persons overseas from before this summer's "fix," meaning that the government might or might not have to go to the court depending on what technical means it chose to intercept the communications.
For those targets, however, who are not U.S. persons but might contact some, the bill would set up a new procedure: The government would go to the FISA Court for an order, good for up to a year and extendable after that, to authorize an entire surveillance program. The government would not have to identify the targets specifically, as long as it could certify that they were "reasonably believed to be located outside the United States" and "not United States persons." Nor would it have to identify "the specific facilities, places premises or property at which acquisition of foreign intelligence will be directed." Under such a program, the NSA might even target a category as broad as all Al Qaeda operatives overseas. And the FISA court would have to approve the application as long as it found that the government had submitted procedures "reasonably designed" to ensure that the targets are non-U.S. persons abroad, that it had proposed adequate minimization requirements, and that it had submitted guidelines "reasonably designed to ensure" that when it shifts its surveillance focus to an American in this country, it will go to the FISA Court for a warrant under the regular rules. In emergency situations, the Democratic bill would let the executive branch issues such orders on its own, good for 45 days.
To the individual whose communications get tapped under this system, there is zero difference between it and the administration's warrantless approach. Will the innocent American whose love notes to her boyfriend in France end up in the hands of an NSA analyst feel less violated because a judge a year before had found that in general the program that nabbed her missives was reasonably targeted at foreign persons? Of course not. The Democratic approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system--and it creates a potentially serious set of constitutional problems with the bill.
Yet even here, the parties are closer than they seem. For the temporary law also makes the administration submit to the FISA court the procedures it uses to determine which surveillance is exempt from FISA--and the court has the ability to send them back if they're unreasonable. The administration, in other words, is not opposed to giving the FISA court some review power over its surveillance procedures. This type of review, as long as it's designed carefully, can be an important device for disciplining the executive in the initial design of its rules, making the spooks and the Justice Department aware in an ongoing way that they are talking to the federal judiciary, not just to each other. It should not, however, be confused with a warrant, as the Democratic approach seems to do. It is, rather, a mechanism of accountability.
This brings me to the major virtue of the Democratic bill. In this type of surveillance, accountability is a far more promising check on executive behavior that pre-surveillance approval. And the Democratic proposal contains important new reporting requirements, so that Congress would receive copies of the government's applications and the court's orders. It also contains a requirement that the Justice Department's inspector general audit the surveillance programs regularly and report to the Congress and the FISA court on such matters as the scope of surveillance under the programs and the number of Americans domestically whose communications have been tapped. It would also require an inspector general audit of the original Terrorist Surveillance Program. These and other reporting rules would create a significant threat of exposure of abuse. That is a far more substantial sword to dangle over the intelligence community's head than any pre-screening of the reasonableness of a surveillance program.
In short, there's a synthesis possible here--a marriage of a broad front-end collection authority with a brutal back-end system of reporting, audits, and oversight. To reach this compromise, the Democrats would have to concede that their programmatic warrant approach adds little of value to the temporary law's system of having the FISA court review the administration's procedures after their implementation. The administration would allow the court a bit more power in that review and might contemplate enhancing the minimization rules so as to protect innocent Americans. Most importantly, it would accept the Democratic reporting and audit proposals.
The two sides are, rhetoric aside, close to an important agreement. If they can't make it the rest of the way, their failure will represent a triumph of political polarization over both American national security and civil liberties alike.
BENJAMIN WITTES is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.
By Benjamin Wittes