FISA and Bush Derangement Syndrome

The sorry spectacle that took place on Capitol Hill in recent days was an outbreak of Bush Derangement Syndrome (Charles Krauthammer’s term) that has threatened to cripple our ability to intercept international terrorist telephone calls. In the end, coalitions of responsible Republicans and Democrats in the House and Senate were able to pass legislation that met the minimum recommendations of Director of National Intelligence Adm. Mike McConnell: modernizing the 1978 Foreign Intelligence Surveillance Act (FISA) to ensure that our intelligence agencies can intercept jihadist telephone calls abroad without having to get judicial approval. But it only happened after an ugly scorched-earth campaign by congressional Democrats who suggested that Adm. McConnell and the Bush administration were negotiating in bad faith and that the changes they wanted would undermine Americans’ constitutional rights. Both assertions are false.

The crux of the problem is this: Earlier this year, a judge with the special federal intelligence court charged with overseeing FISA ruled part of the Bush administration’s terrorist surveillance efforts in effect since 2001 to be illegal (the Bush administration had operated the program separately from FISA, but that changed after the existence of the surveillance program was leaked by the New York Times.) The practical result of this ruling was to block the National Security Agency’s efforts to collect information gathered from foreign telephone calls, e-mails and faxes which are routed through fiberoptic connections in the United States. Back in 1978 when Congress passed FISA, telephone calls from Pakistan to Egypt or from Afghanistan to Great Britain weren’t routed through servers in this country; today, the odds are such messages would come through the United States. The failure to modernize the law has two primary perverse results: 1) the NSA cuts back on surveillance of terrorist targets, and 2) phone companies become reluctant to respond to intelligence agencies’ requests for help for fear of lawsuits from “privacy rights” advocates.

For close to five months, Adm. McConnell has been trying to persuade Congress to clarify that U.S. intelligence agencies can monitor terrorist suspects they reasonably believe to be abroad without having to lose valuable time getting warrants. But the Democratic leadership stonewalled. In the past few weeks, as warnings have mounted that al Qaeda might be preparing to strike the United States again, Adm. McConnell has made numerous trips to Capitol Hill to brief Congress on the threat and work out a compromise with a Democratic congressional leadership that has an ACLU mindset toward terrorism and an intense dislike of the Bush administration. In the end, the Senate passed by a 60 to 28 margin a FISA compromise authored by Republican Sens. Mitch McConnell and Kit Bond that would serve as a temporary six-month fix permitting terrorist surveillance to go forward; the measure was passed by the House Saturday night by a 227 to 183 vote, as 41 Democrats broke with their party’s leadership to give our intelligence agencies the tools they need to monitor foreign terrorist cells.

As the House voted, however, the atmosphere was downright poisonous, with Mrs. Pelosi’s spokesman suggesting Adm. McConnell had acted in bad faith during negotiations. Democrats were furious that the administration opposed a “compromise” offered by House Judiciary Committee Chairman John Conyers that would have required FISA court approval to wiretap foreign targets calling the United States.

One bizarre trend during Saturday night’s floor debate was the obsessive nature of Democratic criticism of the role that the McConnell-Bond measure would give to Attorney General Alberto Gonzales in overseeing surveillance. (He would share this with Adm. McConnell.) At times it sounded as if many lawmakers are more preoccupied with bashing Mr. Gonzales and the Bush administration than in preventing al Qaeda from striking the homeland once again.