Politics, it is often said, is the art of the possible. By that measure, national security has been served by the compromise finally struck Thursday to overhaul our outdated surveillance laws. The measure should be approved by both houses of Congress in the coming days. President Bush will sign it.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

ADVERTISEMENT

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Here is the bottom line: Our intelligence agencies will once again have authority to conduct aggressive monitoring of foreign powers, including terrorist organizations, which threaten the United States. In particular, this will be the case overseas — that is, when foreigners located outside our borders communicate with each other. The Central Intelligence Agency and the National Security Agency will essentially be able to collect foreign intelligence without interference from the courts, the status quo ante that was U.S. law for decades before being upset by a secret court ruling last year.

Moreover, the telecommunications companies which patriotically complied with administration requests for assistance in the emergency conditions that obtained after nearly 3,000 Americans were mass-murdered in the 9/11 attacks will receive retroactive immunity. That is, they will be relieved of the potential billions in liability they (and their shareholders and customers) faced in scores of lawsuits.

The telecoms were sued by the ACLU and other privacy eccentrics because they cooperated in the NSA’s warrantless surveillance of suspected international terrorist communications that crossed U.S. borders — a program the legality of which is richly supported by precedent. Consequently, the American people will be relieved of the vulnerability they would face if industry’s top information technology experts were disincentivized from assisting in our security. (While I have long been a critic of our surveillance laws, I note once again, in the interest of full disclosure, that my wife works for Verizon.)

Contrary to the sky-is-falling hysteria we are likely to hear in the coming days, this immunity is not “blanket.” It benefits only private actors. That is as it should be. This controversy involves the executive and legislative branches of government fighting over ultimate control of surveillance authority. Private actors who merely complied with ostensibly lawful requests should never have been pawns in that political battle. And only those private actors who can show, by “substantial evidence” that they were complying with a written request from government will be afforded immunity.

IMPERFECT COMPROMISE
The intelligence overhaul is very far from perfect. There are two core flaws in our surveillance law, namely, the “probable cause” trigger for monitoring and judicial oversight. The compromise leaves the former unaddressed while exacerbating the latter.

Probable cause is a courtroom standard, the quantum of proof ordinarily required to justify government intrusion on the privacy of an American’s home or private papers. It means the government must have strong indications that a crime has been committed before conducting such a search.

The standard has no place in national-security surveillance against foreign threats. If you have probable cause, you already have strong indications that someone is a threat. That’s too late. The challenge in today’s threat environment, dominated by international terror networks that embed sleeper cells among us to carry out mass-destruction attacks, is to figure out who is a threat. That cannot effectively be done on a probable cause standard. The Constitution does not require one — it mandates only that searches be reasonable — and hence most security searches (such as those occurring as one enters the country or tries to board an airplane) do not require probable cause, much less a judicial warrant.

But the political reality is that the civil libertarian extremists have made dramatic inroads since 9/11, thanks to the regimentally sympathetic ear they get from the mainstream media no matter how absurdly alarmist their claims. Further, as the administration failed to mount an effective defense to slanderous claims that it misrepresented intelligence prior to the invasion of Iraq, its political opponents have tirelessly questioned its candor and competence. In this resulting climate of mistrust, there was no practical possibility of rolling back the high evidentiary hurdle — especially when the administration, far from complaining about it, has seemed oddly untroubled about living with probable cause.

In the compromise legislation, those same political considerations result not only in a failure to rollback judicial participation in intelligence collection but in a marked expansion in the role of the FISA court (the secret tribunal created by the 1978 Foreign Intelligence Surveillance Act).