The ink is still wet on the Foreign Intelligence Surveillance Act amendments, adopted by Congress in the final hours before its August recess, and already this six-month-long compromise legislation has drawn strident criticisms from civil libertarians, who believe that it has given the president too much power.
The truth, however, is that the amendments mostly return to FISA's original intent, to set requirements for judicial review of domestic wiretaps while allowing the interception of foreign communications without a warrant or other judicial order.
Some FISA fix was necessary. As has been widely reported, the Bush administration brought the National Security Agency's Terrorist Surveillance Program under FISA's framework earlier this year. Before that, the TSP -- under which electronic communications into and out of the United States could be intercepted without a court order -- operated on the basis of the president's constitutional authority, buttressed by Congress' authorization to use force, to spy on Al Qaeda and its agents around the world.
In the last few weeks, however, actions by the FISA court -- requiring the NSA to obtain court orders before intercepting purely foreign communications that simply pass through switches physically located in the United States -- have dramatically reduced the NSA's intelligence "take." As a result, the government was not getting much of the information it needed to "connect the dots" and frustrate future terrorist attacks.
Congress never intended to subject surveillance of foreign communications to court review. When FISA was passed in 1978, overseas communications were usually intercepted abroad. They were not subject to FISA's warrant requirements, and they are not subject to the probable cause and warrant requirements of the 4th Amendment.
In the last 30 years, however, technology has changed. Today, much of the world's telecommunications traffic passes through fiber-optic networks in the United States, even though none of the actual communicants are present here. Because FISA originally required the government to obtain an order whenever an interception physically took place on U.S. territory, these communications are now covered. The amendments redress this, making clear that simple interception in the U.S. is not enough to require a court order, as long as the parties targeted are abroad.
