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January 31, 2006

More on FISA
Posted by Morton H. Halperin

Michael Signer and I seem to have reached agreement. Progressives need to make clear that they recognize the serious terrorist threat and the need for surveillance; the lawless program needs to be condemned, but we should recognize that there might be a case to permit more surveillance.

Before we can decide that, however, we need to know more about precisely what the administration is doing.  It is now increasingly clear that there are two different programs: One, which administration officials refer to as the program which the President described, and the other, which we still know almost nothing about.

The program which the President described and which General Hayden explained in some detail does not, as he said, involve any new technology or reviewing masses of data for key words  - that is the other program. So first, what more is there to say about the program the President described?

This program clearly involves targeting a US person to intercept his or her overseas phone calls after that person receives a call from someone suspected of being a member of al Qaeda or an affiliated organization. FISA clearly prohibits such intercepts, but not of the actual calls from the suspected al Qaeda person.  If the administration thinks it needs to intercept such calls it should ask the Congress for authority to do so.  If it thinks the warrant and emergency procedures of FISA do not work for such surveillance it should explain why and ask Congress to authorize a different procedure.  Some of this explanation may need to be in secret, but most of it can be public, including an explanation of how this would be compatible with the Fourth Amendment.

As to the other program, we still know very little.  There are many complicated questions.  As the Justice Department points out in its White Paper (fn 6),  Congress, when it enacted FISA, did not cover certain then-current NSA activities or any interception done overseas.  It appears that NSA has been using this authority more aggressively since 9/11, but until we learn more it is hard to evaluate. 


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