FISA's Fetters

Wednesday, July 9, 2008

THE AMERICAN Civil Liberties Union, in a letter we printed yesterday, accused us of backing a surveillance bill that would give the president "unfettered power to spy on Americans," reducing the role of the court overseeing the surveillance to "little more than serving as a rubber stamp." Sen. Russell Feingold (D-Wis.), in another letter, said the measure overhauling the Foreign Intelligence Surveillance Act, on the verge of congressional passage, "gives the government broad new powers to collect information on innocent Americans within the United States without providing nearly enough protections for privacy." It means, Mr. Feingold said, that "Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone."

These are serious concerns, worth taking seriously. We are under no illusion that the measure is perfect; future fine-tuning may well be called for. The classified nature of the surveillance program makes it impossible to assess the implications with anything near certainty. But the legislation reflects, as far as we can tell, a reasonable compromise, worked out over long months of negotiations, between the legitimate needs of intelligence agencies and the legitimate privacy interests of Americans.

The measure requires an individualized, court-approved warrant to conduct surveillance targeted at Americans' communications with those overseas and -- in an expansion of existing FISA protections -- at Americans abroad. Purely domestic-to-domestic communications, even among foreigners here, would require a warrant as well. Intelligence agencies would be able to target and collect the communications of non-Americans "reasonably believed to be located outside the United States," even if their phone calls or e-mails passed through or were stored in the United States. But the agencies are required to adopt procedures to "prevent the intentional acquisition" of purely domestic communications and to minimize the retention and dissemination of such information.

It is true, as Mr. Feingold suggested, that Americans' communications with parties overseas could be monitored without any showing of cause -- but it is true, as well, that such warrantless monitoring is permitted under the original FISA so long as the collection is done overseas. In addition to the extra protections for Americans abroad, the special FISA court would have to approve the targeting and minimization procedures involving domestic surveillance to ensure that they are consistent with the Fourth Amendment and the law. In addition, the measure prohibits so-called "reverse targeting" -- using the authority to intercept foreign communications without an individual warrant if the real purpose is to spy on a "particular, known person" in this country. This hardly seems unfettered.

Moreover, the legislation provides for enhanced oversight by Congress and inspectors general. It reiterates that the legislation is the "exclusive means" by which the president is authorized to conduct foreign intelligence surveillance on U.S. soil -- preventing, we hope, a repeat of the Bush administration's end-run around the statute. The legislation is far preferable to two likely alternatives -- returning to the outdated strictures of the original FISA or returning to the overly lax authorities of the now-expired Protect America Act, last year's flawed FISA rewrite.

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