The New Republic, October 15, 2007
For all the fire-breathing rhetoric we can expect to hear about modernization of the Foreign Intelligence Surveillance Act in the coming months, last week’s introduction by House Democrats of their bill on the subject makes one thing abundantly clear: The Democrats and the Bush administration aren’t very far apart.
The Democrats really want to tell people that, as the House Intelligence Committee put it in a press release, they are “protecting innocent Americans from warrantless eavesdropping.” The administration, for its part, would love a fight in which it could brand Democrats as soft on terrorism–yet again–if they don’t roll over. And to be sure, there are important differences between the administration’s favored approach, enshrined in a temporary law over the summer, and the prospective House bill.
But let’s be clear: Under either approach, the National Security Agency will have the legal authority to listen to your calls without first going to the Foreign Intelligence Surveillance Act Court to get a warrant. As long as the agency is targeting people overseas who happen to call you, it’ll be tough noogies. Under current law, which the administration wishes to make permanent, the FISA Court plays only a tiny retroactive role in approving procedures for overseas surveillance; under the House Democrats’ proposal, it would play a slightly-less-tiny role in rubber-stamping programs. And except in those most general capacities, under neither system would it play any role in protecting either individual targets of those programs or those whose communications get swept up incidentally under them.
With such a modest gap between the two poles, a deal between them should be very doable—-and there is wisdom in the argument of both sides from which a constructive compromise should draw.
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Benjamin Wittes 