Loose Canons

Fiddling with FISA

Congress is about to give the president a chance to issue his first veto.

By 2.20.06

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Our republic will not die of terrorism, but of euphemism. Congress doesn't declare war, it passes resolutions authorizing military force. The president doesn't veto the worst legislation, he issues "signing statements" that reinterpret Congressional language to fit the president's ideas. And where does that leave those who are trying to fight a war against terrorists and their state sponsors? Drifting, befogged by the wobblies that surround them. Churchill said that when you mean to kill someone, it costs nothing to be polite. In the matter of the Foreign Intelligence Surveillance Act -- FISA -- we require much less politeness and a lot more clarity.

Congress is about to fiddle with FISA and the results will, inevitably, be bad. In fact, even before they are reached, the legislative process, leaking as it does, may do severe damage to the nation's security.

Last week, after being beaten about the head and shoulders for almost two months by the New York Times and the rest, the Bush administration apparently agreed to do that which it had hitherto refused. According to a statement by Kansas Republican Pat Roberts, chairman of the Senate Intelligence Committee, the administration has come on board with the senators and congressmen who want to amend FISA to deal with their various kinds of dyspepsia the program has produced in them. Would that they had, instead, reached for the flask or the Maalox. The FISA fight is the signature clash of the executive and legislative branches in the war on terrorism. Like the War Powers Act before it, FISA attempts to circumscribe what the president can and cannot do in dealing with foreign threats. And, like the War Powers Act before it, every president since FISA's enactment hasn't scrupled at ignoring it (in FISA's case with warrantless searches) while, at the same time, working hard to appear he's following it.

On the political side, President Bush can accept some sort of Congressional me-tooism on the NSA program. It injures not our Constitution if Congress endorses what the president is already doing to gather foreign intelligence. If the FISA amendments could be no more than that, there would be little reason for concern. But with a Democratic party still sunk in the Michael Mooron fever swamp, the FISA amendments may include enough anti-Bush hysteria that the president may be forced to do what he has never yet done: veto a bill passed by Congress. And we may have to take a hand in getting him to do it.

On one side, Sen. Roberts plans to use the FISA amendments to expand the list of leaks for which people can be prosecuted criminally. Which could be good but is almost certainly unnecessary. Given the administration's manana approach to leak investigations, no matter how many crimes may be committed by leaking our top secrets, it's unlikely that anyone will ever go to jail for the leaks no matter how many more crimes are defined. Where, may you ask, is the criminal investigation of Sens. Durbin, Rockefeller and Wyden for leaking a top-secret satellite program? Like the Energizer Bunny, it keeps going and going. And unlike said bunny, it's apparently going nowhere. (Please. Don't even whisper about the Plame Name Blame Game. It's gallows humor, not a leak. It hurt Scooter Libby's career, and nothing else. Certainly not national security.)

So if Roberts expands the list of criminal leaks, the Dems will exact their pound of flesh and require more court supervision of the NSA program. They will try to impose more of the usual civilian court functions on NSA such as "probable cause." To make a legal search for admissible evidence of crime, you have to have probable cause (usually an affidavit sworn by a law enforcement agent on the basis of evidence already in hand) justifying a warrant. Under FISA, the probable cause standard only requires the court to find that the subject to be surveilled is a foreign agent. What, then, if the Fourth Amendment criminal standard for probable cause is extended to the NSA program? In short, the vast majority of information now being gathered by NSA -- legally, under the president's inherent Constitutional powers -- will be lost because that standard won't be met.

Tactical information -- those numbers programmed into a terrorist's speed dial -- is enough to justify a sudden visit by a SEAL platoon to your cave near Kabul but not enough to justify a search warrant to tap your phone in Tappahannock. Throughout American history, the judicial branch has -- wisely, and in accord with the Founders' vision of its function -- steered clear of ruling on issues that are the president's to decide in the conduct of a war. In this case, Congress is aiming to put the courts in precisely the position they have properly avoided. And the more the courts are involved in the NSA program -- and those that come after it -- the less likely those programs will do what they must in defense of our nation because the courts will not just second-guess: they will erect barriers that will have the same effect as the famous "Wall" that prevented intelligence agencies from sharing information with their law enforcement counterparts to "connect the dots" before 9-11. Congress, as the President should have said, demands that the administration connect the dots and then takes away all its pens and pencils.

It's entirely possible that the president will let something patently unconstitutional -- like the McCain-Graham "anti-torture" amendment -- become law after issuing a toughly-worded "signing statement" that basically says the president will only enforce this law up to what he believes are its constitutional limits. Which is kind of like saying he'll break the law when he wants to, and leaves all our guys and gals interrogating prisoners twisting in the wind, subject to the whim of any federal prosecutor who wants to define the terms the law leaves vague. The president erred badly in that one. He cannot repeat the error on FISA.

Another president will have to take over this war when Mr. Bush leaves office in three years. And that next president may not share -- or be bound by -- the sentiments expressed in a signing statement. President Bush, if faced with a FISA amendment that creates a limitation on his inherent power, should veto the bill. And he should be subjected to the same amount of pressure from conservatives he felt on the Miers nomination when and if a FISA mess presents itself.

We need to do everything we can -- everything the Constitution allows -- to prosecute this war. In order to do that, we must also press ahead, with determination and appropriate speed, to prosecute and punish leakers. The administration, not being on great terms with Congress, is slacking on investigations of leaks by members and staffs even as the FISA amendments are about to be taken up.

Last Friday I interviewed Attorney General Alberto Gonzales for the Hugh Hewitt Show. Weeks ago, before he appeared before the Senate Judiciary Committee, Gonzales wrote to Chairman Arlen Specter (R-PA) about some of the considerations he had over Congressional action on FISA. High on the list was his explanation of why the administration hadn't pursued FISA amendments before. Gonzales said then that members of Congress warned that the legislative process might compromise the NSA program. That is, Congress leaks so badly it couldn't be trusted to look at the details of the program. I asked him pointedly if those problems had been resolved. He demurred. In short, without saying so, the AG was repeating that Congress still can't be trusted with secrets.

What is more urgent a task for the administration and Congress: fiddling with FISA or finding and punishing the Congressional and administration leakers? Before either can undertake the former, they must both cooperate in accomplishing the latter. We are a nation at war. We cannot afford to have an untrustworthy Congress. Let the matter be pressed, and let the chips fall where they may.

TAS contributing editor Jed Babbin is the author of Inside the Asylum: Why the UN and Old Europe Are Worse Than You Think (Regnery, 2004).


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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.