Reality, Not Rhetoric, On FISA
The congressional testimony this month by former deputy attorney general James Comey called into question the accuracy of everything I had heard before about the so-called Terrorist Surveillance Program. According to Comey, in the spring of 2004 President Bush authorized a program of domestic surveillance even though his acting attorney general was so concerned about the surveillance that he could not in good faith "certify its legality."
That the program didn't comply with the Foreign Intelligence Surveillance Act (FISA) was not a shock. We have known that fact since the program's existence was disclosed in December 2005. What was shocking was the amount of dissent, even within the president's own Justice Department, about the perils of ignoring FISA.
FISA has been on the books since 1978 but has been updated and modernized numerous times. The law's purpose is to facilitate secret surveillance and searches on U.S. soil against spies, terrorists and other foreign powers.
A Congressional Research Service report last July found that Congress had made approximately 50 changes to FISA since its inception -- and nearly a dozen updates since Sept. 11, 2001. Whenever FISA has been shown to be inadequate to track the communications of terrorists, Congress has been ready to update the law.
In his May 21 op-ed, Mike McConnell, the director of national intelligence, tried to make the case for the administration's new proposal for rewriting FISA. But his complaints about the current system were inaccurate.
He stated that our intelligence agencies must obtain a court order to monitor the communications of foreigners abroad. That is not correct. Foreign-to-foreign communications, as a rule, do not require a court order.
One of McConnell's principal concerns relates to the time required to obtain a court order under FISA, but what he failed to mention is that the attorney general (or the deputy attorney general or an assistant attorney general) can grant oral approval for surveillance if that Justice Department official believes "an emergency situation exists" and that the facts will support a FISA court order.
All that is required to start emergency surveillance under the current law is a phone call from the National Security Agency or the FBI to one of those Justice Department officials.
Yet that is not the administration's practice. The administration's practice is to get multiple approvals and involve hordes of lawyers. Before we sweep away the FISA framework, Congress must review the administration's cumbersome, uncoordinated process that leads to delays in getting emergency FISA applications approved.
In fact, I believe it was the administration's cumbersome, uncoordinated process and not the statutory requirements that led the president to authorize an end-run around FISA.
Last week, I announced that the House Permanent Select Committee on Intelligence would hold hearings on this issue. These hearings will begin next month and will focus on the following important questions:
· What surveillance activities has President Bush authorized under the NSA surveillance program disclosed in December 2005? What was the legal basis for these activities, and how did those activities change since the inception of the program? What activities are occurring today?
· How does the current FISA system operate? Can this system be improved?
· Are current legal authorities adequate for tracking terrorist communications, or are changes to the law required?
· Do current and proposed legal authorities adequately protect the Fourth Amendment rights of Americans?
Certain hearings may have to occur in closed session, but a major hearing on legislative proposals -- featuring administration witnesses and outside experts -- will take place in open session. Whenever possible, changes to public laws should be debated in public.
Meanwhile, Congress should insist that the Bush administration streamline and modernize its bureaucratic system for handling emergency FISA applications. Thanks to advanced technology, my staff can reach me any time. There is no reason the FBI and the Justice Department can't use every tool at their disposal to speed the process of starting surveillance and searches. If the terrorists move at the speed of the Internet, so should we.
The writer, a Democrat from Texas, is chairman of the House Permanent Select Committee on Intelligence.