Just three days from now, last summer’s emergency legislation to forestall a collapse of foreign-intelligence collection will expire. President Bush issued a pointed reminder of that looming deadline last night, addressing the state of the Union before a deeply divided Congress.
Here’s hoping he sticks to his guns. The dangerously obsolete Foreign Intelligence Surveillance Act (FISA) doesn’t need another band-aid. It needs an overhaul, and needs it without further delay.
Democrats are betting that the president will not dare allow the stop-gap authorization he won in August’s “Protect America Act” to lapse, and will thus be amenable to another temporary extension — to be followed, no doubt, by yet more extensions. Transparently, the Left is trying to play a four-corners offense that effectively takes intelligence-reform out of the roiling 2008 election campaign.
That would improve the prospects of Democrat presidential frontrunners Barack Obama and Hillary Clinton. It would further lay the groundwork for one of them, as president, to refurbish FISA in a manner more congenial to today’s liberals: meaning more privacy rights for terrorists and less protection for Americans.
The president should not let them get away with it. This is one comprehensive reform the nation desperately needs. Moreover, the conditions for achieving a permanent fix that bolsters the security of American civilians and our troops will probably never be better than they are today. Now is not the time to blink.
Sensible Democrats want an extension because they understand their party’s position is indefensible. It confounds public weariness over Iraq with public unease over suppressing Islamic militants. Americans want vigorous operations, including aggressive intelligence collection, against al-Qaeda and its facilitators. The Democrats’ presidential candidates know that — that’s why they feel compelled to promise they will boldly fight the “real” war on terror (even as they compete over which of them would surrender most rapidly in Iraq). The Democrats’ strategists, and even some of their allies in the media, understand that public support for the troop surge in Iraq increased because it was having concrete results in routing al-Qaeda. They know it is political suicide to resist reasonable measures aimed at identifying our enemies and thwarting their efforts to attack us.
The administration’s proposed FISA overhaul is just such a measure. It streamlines what virtually everyone agrees is the overly arduous process for obtaining surveillance authorization. Reasonable people can disagree over whether federal courts should be involved in that process at all, and whether courtroom proof hurdles such as “probable cause” should be imposed on intelligence collection. No rational person, however, believes a court-authorization process should be so burdensome, as it is under FISA, that it impedes the intelligence community’s ability to monitor foreign terrorists with the same ease those terrorists enjoy in exploiting modern communications technology.
Moreover, the administration’s proposal reverses last year’s indefensible FISA court decision, which purported to bring exclusively foreign surveillance under the court’s jurisdiction. When FISA was enacted in the very different threat environment of 30 years ago, congress took pains to exclude overseas intelligence operations from court review. The idea in FISA was to provide a measure of due process to Americans inside the United States, not to require a court order before we could eavesdrop on a Saudi terrorist in Pakistan giving orders to Egyptian terrorists in Afghanistan.
The patent absurdity of the court ruling was what drove reluctant Democrats to sign off last August on the Protect America Act: They realized they could not justify grinding intelligence collection to a halt as the Justice Department scrambled to file applications for thousands upon thousands of subjects — including Iraqi insurgents targeting American soldiers — who have no right to privacy from American surveillance.
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