Too much FISA oversight?

The ink is still wet on the Foreign Intelligence Surveillance Act amendments, adopted by Congress in the final hours before its August recess, and already this six-month-long compromise legislation has drawn strident criticisms from civil libertarians, who believe that it has given the president too much power.

The truth, however, is that the amendments mostly return to FISA’s original intent, to set requirements for judicial review of domestic wiretaps while allowing the interception of foreign communications without a warrant or other judicial order.

Some FISA fix was necessary. As has been widely reported, the Bush administration brought the National Security Agency’s Terrorist Surveillance Program under FISA’s framework earlier this year. Before that, the TSP -- under which electronic communications into and out of the United States could be intercepted without a court order -- operated on the basis of the president’s constitutional authority, buttressed by Congress’ authorization to use force, to spy on Al Qaeda and its agents around the world.

In the last few weeks, however, actions by the FISA court -- requiring the NSA to obtain court orders before intercepting purely foreign communications that simply pass through switches physically located in the United States -- have dramatically reduced the NSA’s intelligence “take.” As a result, the government was not getting much of the information it needed to “connect the dots” and frustrate future terrorist attacks.

Congress never intended to subject surveillance of foreign communications to court review. When FISA was passed in 1978, overseas communications were usually intercepted abroad. They were not subject to FISA’s warrant requirements, and they are not subject to the probable cause and warrant requirements of the 4th Amendment.

In the last 30 years, however, technology has changed. Today, much of the world’s telecommunications traffic passes through fiber-optic networks in the United States, even though none of the actual communicants are present here. Because FISA originally required the government to obtain an order whenever an interception physically took place on U.S. territory, these communications are now covered. The amendments redress this, making clear that simple interception in the U.S. is not enough to require a court order, as long as the parties targeted are abroad.

The amendments also permit interception of foreign communications directed into the United States, as long as a person in the U.S. is not the target of surveillance. Why the critics object to this provision on civil liberties grounds is unclear. If any person is targeted for surveillance in the United States, a court order is still necessary. It is only people not in the U.S. who can be targeted without such an order.

It’s true that the foreign targets’ U.S. correspondents may be overheard in the surveillance process, just as innocent people are overheard in conversations with court-ordered surveillance targets. No one can reasonably expect that they would not be unintentionally overheard in the course of a lawful surveillance of others. A “reasonable expectation of privacy” is the key here.

Our privacy is compromised daily by government and nongovernment actors. This is the price of living in a modern society. The real question is how to strike the balance between permissible and impermissible invasions of privacy, and what expectations may be reasonable. Americans may, for example, be subject to physical search without a warrant or judicial oversight whenever they leave or enter the United States. The same should apply to electronic communications coming into or going out of the United States; they should not be subject to a more stringent rule.

The real problem with the FISA amendments isn’t about civil liberties at all. It is that they allow an unprecedented and constitutionally problematic review of the executive branch’s foreign intelligence activities by the FISA court. As a check on the NSA’s surveillance activities, the FISA court will be able to retroactively review the key ground rules that the agency uses to structure the surveillance of foreign terrorists who deliberately communicate into the United States -- and require changes in those rules. This proposal is certainly less onerous for the NSA -- less time-consuming and therefore less likely to block the gathering of important intelligence -- than having to get warrants on a case-by-case basis. Unfortunately, it raises some troubling constitutional and policy problems.

As a rule, the Constitution limits the judicial power of the United States to individual cases and controversies and to the issuance of warrants. Under the FISA amendments, the FISA court would instead, arguably, be issuing a broad advisory opinion, which the NSA would have to implement if it wished to continue a particular surveillance. That may violate the Constitution’s separation of powers principles.

In effect, under this arrangement, the government will now have to obtain a judicial imprimatur to the procedures used to intercept all overseas communications coming into the United States. Thus, for example, if the Chinese defense minister calls into the United States, the procedures used to govern his surveillance must be submitted to the FISA court for review. Such a rule clearly cuts into the president’s core authority as the nation’s “sole organ” (former Chief Justice John Marshall’s term) in foreign affairs, as well as his powers as commander in chief.

The FISA amendments suggest -- at least implicitly -- that the U.S. government has a responsibility to consider, at least in some circumstances, the privacy of foreigners overseas just as it does that of people on U.S. soil. This proposition has never been accepted by the Supreme Court, and its adoption would put the U.S. at a disadvantage in its foreign interactions vis-a-vis every other nation. Adopting measures suggesting that this is, or should be, the case brings us closer to a rule that would submit the executive’s other foreign and defense policy decisions to judicial oversight. This was not what the framers of our Constitution intended, and it is not in the best interests of the American people.

David B. Rivkin Jr. and Lee A. Casey are partners in a Washington law firm and served in the Justice Department under presidents Reagan and George H.W. Bush.