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Why Isn’t FISA Enough?

As Jane noted last evening, Democrats and Republicans skirmished yesterday over the blame for allowing the misnamed Protect America Act to expire. Director of National Intelligence Mike McConnell made sure everyone knew that the nation’s capabilities to conduct surveillance had instantly diminished, a claim repeated by Senator Mitch McConnell and denied by Jack Reed on CNN, echoing earlier statements by Pelosi and Harry Reid. However, the Democrats’ responses to the charge of an intelligence gap are not very reassuring.

Democrats are arguing that there isn’t an immediate problem of a surveillance gap, because the PAA provided that surveillance programs it authorized could continue for up to a year, with some expansion of related targets. In the meantime, entirely new surveillance could begin under the traditional FISA procedures, which require a warrant either before the fact or within 72 hours after surveillance begins. In effect, therefore, Democrats are denying we have a surveillance gap but only because the PAA’s warrantless procedures continue. Is that really where they want to be?

When the PAA was enacted last August, the rationale given by DNI McConnell was that a FISA court had secretly ruled that foreign-to-foreign communications, which Congress had never intended to require FISA warrants and oversight, nevertheless required such oversight if routed through US facilities. No one desired that outcome, so the original purpose of the PAA was to fix this unexpected glitch in FISA, under the assumption that the FISA’s warrant and court oversight were adequate for all other foreign surveillance involving US citizens/residents. In other words, prior to PAA, Democrats apparently believed that FISA’s warrant and oversight were an adequate structure for surveillance and thus made FISA the exclusive means for conducting such surveillance.

It was only the shameless fearmongering, including the false revelation that an attack might be imminent, and claims of a backlog in FISA applications that allowed DNI McConnell and the Administration to bully Congress into a wholesale gutting of FISA last August — an action the Democrats immediately regretted and promised to amend before the PAA expired six months later. Yet here are the Democrats now defending themselves by arguing that our surveillance programs are sufficient only because the PAA’s provisions can extend another year.

While much attention has been focused on retroactive immunity for telecoms, Senators Feingold, Dodd, Whitehouse and others have been fighting hard to reinstate the FISA court protections provided by warrants and independent judicial oversight. It has been a losing battle, mostly because they’ve been forced to use the unconstitutional PAA structure as the basis, and because they’ve been undermined by Senator Rockefeller and others.

If the Democrats intend to abide by the Fourth Amendment, they’re going to have to change the terms of the debate. They need to stop apologizing for FISA, reaffirm its exclusivity, and return to its fundamental principles. Surveillance must be done, but it should be under court oversight, including court-approved warrants, court oversight of miminization procedures, protections for dissemination and disposal of surveillance information and full disclosure of program activities to Congress.

The purpose of FISA is not merely to provide the lawful means to exercise surveillance but also to limit the government’s ability to conduct warrantless surveillance without independent judicial oversight. We have FISA because government will always — always — abuse its authority, exceed its bounds and expand its surveillance beyond its original designs. That means that DNI McConnell’s insatiable appetite for massive spying on Americans has to be reined in, even if it means that some of the surveillance programs he wishes to pursue have to be curtailed or brought under FISC oversight.

And the next time an Administration official complains that FISA has restricted their ability to gather intelligence without court oversight, the response should be, "yes, that’s what it’s supposed to do. If that’s a problem, prove to us that the restriction in unreasonable, but in the meantime, obey the law."

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

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