Why Congress Shouldn’t Panic about Eavesdropping

Rep. Rush Holt (D-NJ) has been a real leader in the fight to restore meaningful judicial oversight of domestic intelligence gathering activities. When the Democratic leadership unveiled its initial FISA reform proposal last fall, Rep. Holt felt the legislation had inadequate judicial safeguards and introduced an alternative bill with stronger judicial oversight. Holt successfully persuaded the Democratic leadership to make key changes to the legislation which became the FISA reform bill that ultimately passed the House in November.

Yesterday, Rep. Holt gave a great speech on the House floor urging his colleagues not to succumb to the administration’s scare tactics:

The PAA allows the President to conduct surveillance for virtually any reason with absolutely no oversight by a court, which means the administration’s surveillance activities don’t have a meet an independent judicial standard for appropriateness. It has been demonstrated that when officials must establish before a court that they have reason to intercept communications, we get better intelligence than through indiscriminate collection and fishing expeditions.

Passing this extension, rather than letting the PAA expire, achieves nothing from an operational point of view. This is a political calculation intended to facilitate our negotiations with the Senate and the White House. I disagree—this would not improve our negotiating position. If the PAA expires, all current surveillance orders issued under its authority will continue in effect until they expire. It’s also important to note that any existing PAA orders that continue in effect after the act’s expiration date are general enough to allow any necessary surveillance activity that may be required…

The House passed a good FISA modernization bill late last year (the RESTORE Act), and any House-Senate conference discussion on how to modernize FISA should start with that bill. In the meantime, our intelligence services will continue have the tools they need to protect us.

Allow me to expand a bit on Holt’s argument. The Protect America Act states that “the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information.” And the authorization “is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.” This suggests that a single “authorization” is not limited to a particular investigation or target, but can be used to approve general, open-ended wiretapping programs such as the one uncovered by the New York Times in 2005.

Most likely, the administration has issued “authorizations” for its various warrantless surveillance programs. These authorizations will not expire when the Protect America Act sunsets; they will continue in force for a year, which means that the earliest any of them would expire is next August. And if, after the Protect America Act sunsets, a surveillance need comes up that’s not covered by an existing “authorization,” the government will still have the ability to obtain a warrant the old-fashioned way through the original FISA provisions. Indeed, FISA has always permitted the government to begin eavesdropping immediately and request an emergency warrant up to 72 hours after the fact.

In short, nothing catastrophic will happen if Congress doesn’t enact new legislation this week. The intelligence community will have all the authority it needs to continue its surveillance of suspected terrorists. Yet the president is doing his best to create an atmosphere of panic because he believes that will help him stampede Congress into approving an unnecessarily broad expansion of executive power. Congress should keep its wits about it and take the time it needs to craft balanced legislation that gives the intelligence community the flexibility it needs while preserving the principle of judicial oversight and rejecting demands for retroactive immunity for lawbreaking telecom companies.