Come February, the safest place in the world for a terrorist to plot an attack against the United States might just be ... right here in the United States. That's when the six-month authorization of the Terrorist Surveillance Program — which Congress passed in August — expires.
Under pressure from the new Democratic majority, the White House in January agreed to bring the program under the provisions of the 1978 Foreign Intelligence Surveillance Act. But one of the 11 judges on the secret FISA court issued a ruling that hamstrung the program and created a dangerous intelligence gap.
Director of National Intelligence Mike McConnell told the Senate Intelligence Committee in May, "We're actually missing a significant portion of what we should be getting." And in a demonstration of the priorities of its leadership, Congress addressed this pressing national security issue by passing a temporary authorization three months later.
If Congress allows the TSP authorization to lapse, it will reproduce a situation described by Gen. Michael Hayden, then director of the National Security Agency, in testimony to the House Intelligence Committee in 2000. Hayden spoke about the limitations an antiquated FISA statute imposed upon his agency and referred to a relatively unknown terror leader:
"If, as we are speaking this afternoon, Osama bin Laden is walking across the Peace Bridge from Niagara Falls, Ontario, to Niagara Falls, N.Y., as he gets to the New York side, he is an American person and my agency must respect his rights against unreasonable search and seizure as provided by the Fourth Amendment."
"American person" or "U.S. person" can refer to an American citizen or a legal alien resident of the United States.
Hayden is now the director of the CIA. Like McConnell, he was selected to head the NSA by Bill Clinton. So the partisan charges that these two intelligence community professionals are flacks for the Bush White House — like the repugnant personal attacks against Gen. David Petraeus — are far off the mark. And in the years since Hayden talked about FISA's obsolescence, it has become even more outmoded.
When Congress passed the Foreign Intelligence Surveillance Act three decades ago, U.S. spy agencies obtained most foreign intelligence with satellites in space and listening posts in foreign countries, by latching onto cables in international waters and wiretapping foreign telephone lines. If the targets of U.S. surveillance happened to talk to U.S. persons, it was of no legal consequence since the intercepts took place beyond U.S. borders.
The revolution in telecommunications has changed all that. The digital packets of a telephone call or e-mail from a terror mastermind in Pakistan to a cell in Germany might be routed through communications hubs in the United States. And according to at least one anonymous FISA judge, since that foreign-to-foreign intercept is taking place on U.S. soil, it requires a FISA warrant.
Whereas Hayden described a hypothetical situation where bin Laden could be granted Fourth Amendment protections by virtue of being a U.S. person, the FISA court has effectively granted those protections to him as a foreign person. If the terror kingpin happens to call or e-mail a U.S. person, the legal proscriptions and barriers are even more pronounced.
The FISA court has turned what should be an advantage in the war on terror — U.S. dominance in telecommunications — into a dangerous disadvantage. What's needed is a permanent fix to FISA law, not a temporary extension of the surveillance program.
The main sticking point in August was the refusal of Democratic leaders to extend retroactive immunity to telecommunications companies for cooperating with a surveillance effort they believed to be legal. That's a petty loophole to keep open for litigious opponents of the terrorist surveillance program, one that could turn the worst nightmares of our intelligence community and the fervent dreams of our terrorist adversaries into reality.
