The next FISA debacle

Andrew McCarthy:

Collecting intelligence and connecting dots isn’t just good policy. It’s good politics. The reform of FISA -- the ill-conceived, outdated Foreign Intelligence Surveillance Act -- should thus be a huge political winner for the Bush administration and national-security conservatives. It is sadly telling, then, that we can already mark it down as a loss. The real question now is: just how badly will the Left be permitted to damage our capacity for self-defense?

There are three proposals on the table. None of them tackles the core constitutional and practical flaws of FISA. One, emerging from the Senate Intelligence Committee with overwhelming bipartisan support and administration backing, has real downsides. Still, it does at least address the parlous state of our foreign intelligence capabilities -- the difference-maker between preventing terrorist attacks and counting casualties. The other two, simply stated, are disasters -- party-line gambits wrought by House Democrats and Chairman Patrick Leahy’s Senate Judiciary Committee.

The fundamental problems with FISA cannot be fixed by reform. That would require repeal, for which there is no political will -- so successful have the media, the ACLU, and Left-leaning academics been in recasting national defense as a legal exercise. To the contrary, the Framers saw national defense -- and its bedrock components like foreign intelligence collection -- as the quintessential political activity. Ingeniously, they designed an accountability nexus: decisions were to be made by the political branches directly accountable to the voters whose lives were at stake. Policy-makers who unduly curbed individual liberty or insufficiently safeguarded the public would answer at the ballot box. Primarily, this meant the president, whose foreign affairs powers have long been recognized as plenary.

The judiciary, the non-political branch, would have no role. As late as 1948, the Supreme Court expressly recognized that, besides being bereft of foreign intelligence tools, judges are not accountable to voters. It would be grossly inappropriate for courts to assume political responsibilities, particularly in life-and-death matters. And in 1968, when Congress enacted the first federal wiretap statute to regulate eavesdropping in criminal investigations, it took pains to note that it was not purporting to interfere with the “constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack …, [and] to obtain foreign intelligence information deemed essential to the security of the United States.”

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There is much more. McCarthy makes a cogent case against FISA and I agree with him. The law needs to be repealed or found unconstitutional. It is a ridiculous assertion of power by the Congress and the Judiciary. To require an administration to jump through hoops to intercept enemy communications in a time of war has to be one of the more ridiculous and irresponsible acts of Democrats and their co conspirators in recent times. It shows more concern for terrorist rights than for defending the lives of Americans. The proposals put forward by the Democrat partisans are clearly unconstitutional.