13 AUG 07 / "Congress Updates FISA"

Director of National Intelligence Mike McConnell got caught up in a maelstrom on Capitol Hill last week after Democrats wrongly portrayed him as being in agreement with a surveillance bill he actually believed did not go far enough in protecting the country.

McConnell had to issue a statement declaring that he did not support the eavesdropping legislation the Democrats originally submitted. Some Democrats then accused him of violating a verbal agreement with them and cowering to the wishes of the Bush administration.

When Democrats could not garner enough votes for their bill, the Republican alternative won passage just before the August recess. The Democratic resistance to the Republican legislation centered around a fear that the privacy rights of Americans would be violated. In actuality, the Democrats were intent upon extending privacy rights to foreigners. To afford potential terrorists the constitutional protections guaranteed to American citizens is dangerously absurd. 'Domestic spying' was never an accurate representation of the Republican plan because of safeguards that any evidence collected from surveillance that did not pertain to terrorism could not be used in a criminal prosecution.

Intercepting communications between terrorists is obviously critical in order to protect Americans from devastating attacks that could not only cripple our economy but threaten the foundations of our government. FISA now allows warrantless surveillance of foreign agents whose communications are routed through the United States. The White House also lobbied successfully to extend the coverage to when a foreigner was calling an American from outside the United States.

Under the former version of FISA, authorities required a warrant from a special 11-member court, which was to determine if probable cause existed that the target of the proposed surveillance was the "agent of a foreign power." The FISA court had recently ruled that foreign to foreign communications also require a warrant -- a ridiculous and onerous constraint upon anti-terrorist investigative powers of the executive branch. Intelligence gathering teams needed more flexibility and leeway in order to protect Americans. They got it with this bill. The law expires in February unless renewed by Congress, but any surveillance orders in place before it expires can remain in effect for up to a year. 

Receiving a warrant can take several days whereas terrorists can initiate an attack in mere minutes. Authorities now will only need a warrant if an American citizen is the original target of the surveillance. The updated FISA grants the National Security Agency the authority to decide matters of surveillance, not the FISA court. The national intelligence director and the attorney general now have joint authority to approve the monitoring of phone calls, emails, and other forms of electronic communication.