FISA's Fate Should Be The Funeral Pyre

GENERIC: Wiretap, Wiretapping, White House, America, USA, spying, spy
This column was written by Andrew C. McCarthy.

We should all breathe a sigh of relief that sanity prevailed when Congress enacted emergency legislation over the weekend to address a national-security crisis: the hamstringing of our intelligence community's ability to eavesdrop on agents of foreign powers situated overseas and bent on killing Americans.

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.