The advocates for terrorist privacy rights

David Rivkin and Lee Casey:

Would any sane country purposefully limit its ability to spy on enemy communications in time of war? That is the question Congress must answer as it takes up reform of the Foreign Intelligence Surveillance Act. Privacy activists, civil libertarians and congressional Democrats argue that both foreign and domestic eavesdropping must be subject to judicial scrutiny and oversight, even if this means drastically reducing the amount of foreign intelligence information available to the government, without ever acknowledging the costs involved. It is time the American people had an open and honest debate on the relative importance of privacy and security.

FISA, of course, is the law regulating the government's interception of "electronic communications" for foreign intelligence purposes. Earlier this year the special FISA court narrowed dramatically the National Security Agency's ability to collect overseas intelligence under the law, so Congress passed a six-month amendment before its August recess to allow current surveillance programs to continue. That amendment should be made permanent.

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Warrantless surveillance is also constitutional. The Fourth Amendment prohibits only "unreasonable" searches and seizures. Although today's privacy advocates routinely claim that warrantless searches are inherently unreasonable, that position is insupportable. The Supreme Court has repeatedly approved numerous warrantless searches, balancing the government's interests against the relevant privacy expectations. Thus drivers can be subjected to sobriety checkpoints and international travelers are liable to search at the border.

The key in such cases has generally been the presence or absence of a "reasonable expectation of privacy." If there is no reasonable expectation of privacy associated with a particular location or activity, then a warrantless search is not unreasonable. Whether Americans have a reasonable expectation that their international communications--which may be routed through any number of foreign countries and are routinely subject to capture by foreign intelligence services--will not be incidentally intercepted by the U.S. government is debatable. But foreign nationals communicating abroad have no reasonable expectation of privacy vis-à-vis the NSA simply because their conversations are electronically transmitted through American switching stations.

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The privacy advocates claim that surveilling without traditional warrants, albeit still with substantial judicial involvement, "purely" foreign-to-foreign communications is enough. But many of the NSA's most valuable overseas targets routinely contact Americans. Moreover, if the Democratic-leadership authored FISA reform--which requires judicial involvement once a foreign surveillance target reaches a certain number of communications with the U.S.--were to pass, every foreign terrorist and spymaster would communicate with the U.S. enough to be enrolled in the warrant-driven surveillance program. As a result, the only people overseas who could still be surveilled warrantlessly would be the ones with the least intelligence value.

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What should be blindingly obvious is that we should be most interested in the contacts terrorist have with people in the US, because they are most likely to be his agents that have been sent to do us harm. Would you not want to hear incoming calls to Mohammad Atta? The deadly stupidity of the terrorist privacy rights position was demonstrated in the 10 to 12 hour wait during a critical period to get access to internet communications of the terrorist who kidnapped US soldiers in Iraq because the communications touched US wires. Those critical hours lost may have meant the death of the servicemen kidnapped. All this to make liberals feel good that their daughters email to someone in Iraq will not be scanned by a NSA computer.

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