No 4th Amendment for terrorists abroad

Andrew Napolitano’s Op-Ed article arguing that foreign terrorists are entitled to protections under the 4th Amendment is riddled with false arguments and absurd comparisons. It is lucky for all of us that federal courts have rejected his wrong-headed, judicial-activist theories.

We live in a dangerous time and our intelligence agencies are our front line of defense. To a great extent, it is through their efforts that we have prevented numerous attacks on the United States since the tragedies of Sept. 11, 2001. Our vigilance and aggressive approach to combating terrorism must continue if we are to avert future attacks.

I sit on both of the committees in the House of Representatives with jurisdiction over the Foreign Intelligence Surveillance Act, Intelligence and Judiciary. One of the biggest differences between the two committees is that many proceedings before the Intelligence Committee are held in secret, closed sessions. The simple reason for this is that much of the information disclosed at these hearings could endanger American lives if released to the public.

For the very same reason, requests for FISA wiretaps are made in nonpublic FISA court proceedings. The information presented during these proceedings is sensitive in nature, and we cannot allow our enemies to know what we know, or worse, give them information they do not already have. Napolitano’s assertion that FISA court proceedings are “bizarre” and unconstitutional ignores our national security interests as well as interpretations of the Constitution by our nation’s court system.

Napolitano, arguing that FISA and our government’s monitoring of terrorists are unconstitutional, posed a question that I find truly perplexing. He asked, “If we lower constitutional protections for foreigners and their American correspondents, for whom will we lower them next?”

Let me be clear, foreigners abroad do not enjoy — and have never been granted — the protections of the U.S. Constitution, including 4th Amendment protections against unreasonable searches and seizures.

FISA requires a different showing of probable cause from traditional criminal wiretaps. However, this isn’t a “constitutionally questionable procedure” as Napolitano suggests. It’s common sense. Clearly, acquiring evidence to prosecute a crime that has already been committed is markedly different from acquiring foreign intelligence information to prevent a terrorist attack. Congress recognized this when it enacted FISA in 1978 — an effort that did not extend the powers of the presidency but attempted to limit them. The constitutionality of FISA is well-settled by the courts. The Foreign Intelligence Surveillance Court of Review even noted that, in certain respects, FISA actually surpasses constitutional requirements for traditional criminal warrants.

Since its enactment in 1978, FISA has not required court orders to monitor a person who is not in the U.S. and is not an American. Napolitano seemingly misunderstands the real and important purpose of FISA — to provide constitutional protections to U.S. persons, not foreigners.

Napolitano’s article echoes many of the arguments made by the Democrat majority in the House, that effectively monitoring foreign terrorists and protecting the rights of Americans are incompatible. Earlier this month, the Senate adopted a bipartisan bill that would stay on the books for six years — House Democrats, however, refused to bring this bill to the floor for a vote, deciding instead to allow authority critical to our ability to monitor terrorists to simply expire. Leaving town without acting on an issue so important is shameful — the House Democrat leadership has placed both our homeland and our troops fighting abroad in increased danger.

The debate over FISA is an important one and Republicans are committed to ensuring that individuals within the United States continue to enjoy their full constitutional rights. Everyone agrees that we need strong protections against monitoring of Americans’ communications. That’s why our intelligence laws have always required court orders to target people in the U.S. However, we cannot hamstring our intelligence agencies by forcing them to seek a court order every time they need to monitor the communications of suspected terrorists abroad. The tools used by the intelligence community must be as real and rapidly deployed as any looming threat.

Darrell Issa is a Republican congressman from Vista.