The Times is engaged here in the worst kind of journalistic abuse. Risen and Lichtblau sprinkle their story with the names of several experts, but not a single one is identified as standing behind the explosive claims quoted above. Those are attributed to “experts” — unnamed. And unnamed for good reason: What the Times represents as a respectable, mainstream interpretation of the new law is actually a fringe construction unsupportable by any coherent reading.

All the very narrow reform bill really accomplished was a return of FISA (and only for the next six months) to its original design, stripped of the gloss recently imposed by the imperious FISA court. The law gives Americans modest protection against some forms of national security surveillance but otherwise acknowledges that the NSA and CIA have a free hand to target people outside the U.S. — especially if, as is usually the case, these overseas targets are contacting people who are also outside the U.S.; and even if, as is sometimes the case, they are contacting people who happen to be inside our country (and may or may not be Americans).

The reform bill allows the attorney general and the director of National Intelligence to “acquire foreign intelligence information concerning persons reasonably believed to be outside the United States.” Could that information implicate Americans? Of course it could. If the government is monitoring an al Qaeda operative in Afghanistan and he happens to call you, an American citizen in, say, St. Louis, it will monitor your conversation. But just your calls with him. If the government then wants to take the next step and monitor all your calls, get your business records, or search your house, it still has to go to the FISA court to get authorization. The new law does not change that.

This sort of thing, furthermore, is routine. When I was a prosecutor, I might subpoena — without any court supervision — the phone records of a pizzeria used by the mafia as a drug-trafficking front. If you called for a pepperoni (hold the anchovies), I suppose the Times could say I got your phone records (i.e., records of whatever calls you made to the target phone). If the call was placed from your office, I guess correspondents Risen and Lichtblau could even claim I seized your business records. But was I engaged in domestic spying? I rather think most Americans saw it as competent investigation.

An investigator can’t tell the phone company, “Just give me the relevant calls.” The investigator’s job is to get all the calls and figure out which ones are relevant based on everything else he knows. Thus, the investigator monitors all the target’s calls for a particular timeframe. Since it takes at least two to tango, that necessarily means the investigator monitors the other end(s) of the conversations. It is a minor intrusion on everyone’s privacy, but the trade-off is that if mafiosi try to use pizzerias to sell dope, we can prosecute them, and if terrorists are trying to blow up a city, we have a chance to stop them. Outside the New York Times and the academy, most people think this is a fairly significant upside.

POLITICAL ACCOUNTABILITY OR FISA?
FISA is a foolish law. As I’ve argued here, the best solution would be to cashier it. That, though, is a serious conversation. It would require us to come to terms with the fact that foreign-intelligence collection is a political responsibility that should not be overseen by an unaccountable court; with the fact that FISA’s “probable cause” standard is impractical in a threat environment dominated by embedded jihadists whose strings are pulled by overseas masters; and with the fact that, though our enemies take full advantage of the telecom revolution, FISA would tether us to the ball-and-chain of three-decade-old technology as we try to keep up with them.

Of course we don’t want to surrender more privacy than is reasonably necessary. But do we really expect the same privacy calling Afghanistan (a war zone scoured by every intelligence agency in the world) or even England (where U.S. law does not control) as we do when we call Cincinnati? Is it really objectionable if the government can harness the same information about you as a bill collector or that annoying telemarketer who always manages to call just as you’re sitting down to dinner with your family? Last I checked, neither the bill collector nor the telemarketer was trying to keep anyone alive.

Bush Derangement Syndrome is such that many people — including the newspaper of record — don’t want to have a serious conversation about the proper balance between privacy and security. They prefer to misrepresent laws and proposals while hinting at dark conspiracies. It would be nice if they’d notice that the Bush administration, for all intents and purposes, is over. This argument is about what powers must be available to the branch of government charged with ensuring public safety; it is not about which person or party is wielding those powers at the moment.

I would prefer that Senator Clinton not be elected president. If she is, however, I want her, not the FISA court, to decide who gets monitored. Further, I am content to trust oversight to the other branch that must face the voters whose lives are at stake, not to a judge insulated from the electoral process and free to indulge his or her subjective notions of due process.

Immediately after 9/11, everyone in America was outraged by the “wall” which impeded intelligence-sharing and destroyed any hope of averting the attacks. Not surprisingly, the president and Congress tripped over each other in the rush to knock it down, then spent the next few years pleading with voters to understand that its erection and maintenance weren’t really their fault. By contrast, the FISA court, unconcerned with such irrelevancies as voters, tried to rebuild the wall by judicial fiat. Just as that same court has judicially legislated a new FISA this year, giving more due process to foreign spies and terrorists, and thus crippling our ability to monitor them. So what just happened? Despite control of both Houses by Democrats, the darlings of the ACLU, Congress dared not leave town two weeks ago without undoing that judicial excess. Members, after all, were headed home to face their constituents, not the Times Washington Bureau.

True national security is politically responsive security. Judicially managed security, otherwise known as FISA, is a ticket to another 9/11.

— Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

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