FISA's Fate Should Be The Funeral Pyre

This column was written by Andrew C. McCarthy.

I would keep the cork on the champagne bottle, though — and not just because this eleventh-hour fix of the 1978 Foreign Intelligence Surveillance Act (FISA) will lapse in six months, nor because it is absurd that we should ever have been arguing over anything so silly in the first place.

We should be horrified by this crisis because of what caused it: FISA and judges.

We should be equally affronted by the hypocrisy of congressional Democrats and the left-wing commentariat. It's not national security or the "rule of law" they care about. It's politics — plain, simple, and brass-knuckled. The calculation: If George W. Bush can be hurt a polling point or two (yes, there's still room to go down) by posturing over law-breaking, it's okay to roll the dice with our lives.

For nearly two years since The New York Times blew the NSA's warrantless-surveillance program, the Left has transfigured itself into a whirling dervish of indignation over President Bush's imperious trampling of "the rule of law." Why? Because he failed to comply with the letter of FISA, which purports in certain instances to require the chief executive — the only elected official in the United States responsible for protecting our nation from foreign threats — to seek permission from a federal judge before monitoring international enemy communications into or out of the United States.

But the president, at least, had an excuse. Actually, not a mere excuse but a trump card. We call it the American Constitution. It empowers the chief executive to conduct warrantless surveillance of foreign threats. Even the FISA Court of Review, the highest, most specialized judicial tribunal ever to consider FISA, has acknowledged this. So did the Clinton administration when FISA was amended in 1994. In the United States, the "rule of law" first and foremost is the Constitution.

The president's constitutional authority is inviolable — it cannot be reduced by mere legislation. When Congress passes a statute, like FISA, that purports to reduce the president's constitutional authority, it is Congress, not the president, that is trampling the rule of law. A president who ignores such a statute is not a law-breaker; he is a defender of the highest law. He is executing the responsibility vested in his office by the Framers who, as Alexander Hamilton observed in The Federalist No. 73, worried deeply about "the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments."

But let's leave that aside for a moment. Whether you agree or disagree with what I just argued, it is incontestable that, under our Constitution, the president has a role — a plenary role, according to the Supreme Court — in the gathering of intelligence against foreign entities for national-security purposes.

The courts, to the contrary, have no such role. The Framers did not give them one, and the Supreme Court has acknowledged that they are institutionally incompetent to be brought into the intelligence-gathering equation, much less to manage it.

It is thus not the Constitution that has inserted judges into the intelligence-gathering business. If the Constitution were being honored, they'd be out of it. They are in the equation for one reason and one reason alone: Congress unwisely (and, I believe, unconstitutionally) interposed them when it enacted FISA.

Where's The Hue And Cry Over Judicial FISA Violations?

So, what caused our present national-security crisis? A judge on the FISA court outrageously ignored the FISA statute. And it's not the first time. And, whenever it happens, the purpose is to vest our enemies with more "rights," not to protect our nation from those trying to slaughter us.

Understand this point — it's crucial: The president has a right to ignore the FISA statute if it conflicts with the higher duties that are assigned to him by the Constitution. The president has an obligation to safeguard the American people against foreign attack — including strikes ordered by al Qaeda supervisors overseas, who give direction to terrorists embedded here, as they did in the run-up to 9/11. You can argue that he has overstepped his authority. You cannot credibly argue that he is without a colorable basis for doing so.

By contrast, the judiciary has no such authority. None. The FISA court has no constitutional responsibility to manage intelligence-collection. The Framers would be spinning in their graves over the mere suggestion of something so preposterous. If the court has a proper role — an enormous if — that role absolutely cannot be any broader than what Congress has prescribed in FISA. It could very well be less. If, as I contend, Congress overstepped its bounds in enacting FISA, the role of the courts could be either nonexistent or something less than FISA designed. It can, however, in no event be greater than what is laid out in FISA.

Why is this critical? Because we've now learned that a FISA-court judge caused the ongoing crisis by ruling that foreign-to-foreign communications — contacts between an agent of a foreign power and another person when both are situated outside the United States — are within the ambit of FISA. There is no way a federal judge following the letter of the FISA statute could possibly have come to that conclusion.

When Congress enacted FISA in 1978, its purpose was to curtail the ability of the president to conduct domestic spying against Americans, as President Nixon had done. It was an exercise in overkill — but that's an argument for another day. The point for present purposes is that Congress intentionally excluded foreign-to-foreign communications.

It did this by writing an exacting definition of the "electronic surveillance" for intelligence collection purposes that FISA claims to regulate. There are thus four categories of FISA-regulated communications. For simplicity's sake, I will avoid the distinctions between "radio" and "wire" communications; they are not pertinent to my simpler point, which is that foreign-to-foreign contacts palpably fall outside FISA's framework. The four types of communications FISA regulates are the following:

(a) Those involving a particular, known American citizen or permanent resident alien who is in the United States and has intentionally been targeted for monitoring, no matter whether the interception takes place inside or outside the United States;

(b) Those involving someone inside the United States, even if that person has not been intentionally targeted, if the interception occurs within the United States;

(c) Those in which all parties to the communication are located within the United States; and

(d) Those rare contacts which are neither radio nor wire communications, "in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes."

That's it. If a communication does not fit into one of those categories, FISA has no application and the executive branch — even under Congress' constitutionally dubious construct — is not required to seek judicial permission.

Clearly, none of those categories touches foreign-to-foreign communications. They all relate to contacts in which at least one party is in the United States. Indeed, even the last category — which relates to very few types of contacts because it excludes both wire and radio communications — implicitly requires a U.S. nexus because it speaks of "a warrant [being] required for law enforcement purposes." A warrant is never required for law enforcement purposes outside the United States. The federal courts have no jurisdiction over locations outside our country, and, as the Supreme Court has firmly held, law enforcement is not bound by the Fourth Amendment when dealing with aliens outside our borders.

So how could a FISA-court judge have come to the conclusion that foreign-to-foreign communications implicate FISA and required judicial sanction? Only by making it up. That is, only by violating the terms of FISA in favor of what the judge subjectively believed FISA should cover. The happenstance that a foreign-to-foreign communication passes through American telecom networks is irrelevant. In enacting FISA, Congress plainly considered communications that pass through the United States. Take a look, especially, at category (b), above. It concluded that those would only be the court's concern if at least one end of the communication was inside the United States. If it's foreign-to-foreign, it's none of the FISA court's business.

So where is the outrage? Where are the Democrats calling for impeachment hearings against the FISA judge for blatant lawlessness? Where are the media and the liberal academics complaining that the FISA court is disregarding FISA?

It's All Posturing… And Dangerous

They were sure loud enough when the culprit was the president. But, again, when President Bush ignored FISA, he had a plausible (I would say a convincing) reason for doing so.

To the contrary, a FISA-court judge has no constitutional portfolio to fall back on. As the Supreme Court explained in 1948, intelligence gathering involves "decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." The judiciary doesn't belong in this thicket at all. If, however, the judges are in it, their authority can go not an inch further than what Congress defined in FISA.

Of course, we hear none of the theatrical rebukes that thundered against the White House. FISA has been blatantly violated, but the Left is not complaining because vindicating "the rule of law" has never been the purpose of its high-minded defense of FISA. It's a game, and it has always, for every minute, been all about politics. If it doesn't hurt Bush, who cares?

We should all care. The FISA court has conducted itself lawlessly since the 9/11 attacks and no one — not Congress, not the administration (at least since Attorney General Ashcroft stepped down) seems to give a hoot. Worried about the imperial presidency, are you? How about the imperial judiciary?

The FISA court scoffed at the Patriot Act after Congress enacted it expressly to dismantle the infamous "wall" — the impediment to intelligence sharing which quite likely prevented the FBI from thwarting the suicide hijackings that killed nearly 3,000 Americans. Yes, the Patriot Act was the subject of great debate. Yet, the one part of it about which there seemed to be genuine bipartisan consensus was the need to knock down the wall. No one would defend the indefensible. No one, that is, except the FISA court. The FISA judges, in breathtaking arrogance, did not merely defend it; they tried to re-erect it against the express, unambiguous direction of Congress. They were put back in their place only when overruled by the FISA Court of Review — the only decision that court has ever rendered (and the one the Left hates to talk about because it concedes that the president maintains constitutional authority to conduct warrantless searches).

Now, the FISA court judges are at it again, violating statutes and making up their own surveillance regime as they go along — just like the president has been accused of doing. The only difference, of course, is that the president, who has constitutional duties to uphold and is accountable to American voters, fashioned an NSA program that was designed to protect American lives; the judges, who have no constitutional duty in this field and are insulated from the voters whose lives are at stake, somehow always manage to confer more rights on foreign enemies of the United States while leaving the American people more vulnerable.

FISA doesn't need a fix. It needs a decent burial. Like the wall, it's a bad idea that keeps proving itself to be a worse idea. We shouldn't need another 9/11 before we open our eyes to the undeniable.

By Andrew C. McCarthy
Reprinted with permission from National Review Online