Moving the Goalposts on Surveillance

Fox News correspondent and former judge Andrew Napolitano has a great op-ed in the Los Angeles Times arguing that FISA, which the Bush administration claims places too many restrictions on the administration's intelligence-gathering activities, has itself eroded the privacy rights guaranteed by the Fourth Amendment:

The FISA statute itself significantly -- and, in my opinion, unconstitutionally -- lowered the 4th Amendment bar from probable cause of "crime"to probable cause of "status." However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.

Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution,they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.

Then the Bush administration and Congress went even further. The administration wanted, and Congress has begrudgingly given it, the authority to conduct electronic surveillance of foreigners and Americans without even a FISA warrant -- without any warrant whatsoever. The so-called Protect America Act of 2007, which expired at the end of last week, gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are spied on -- illegally -- in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of unsuspecting Americans' conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.

So where does all this leave us? Even though, since 1978, the government has gotten more than 99% of its FISA applications approved, the administration wants to do away with FISA altogether if at least one of the people whose conversations or e-mails it wishes to monitor is not in the U.S. and is not an American.

I'm not sure I entirely agree with the characterization of FISA as it was originally enacted in 1978. We do, I think, want our intelligence agencies to be keeping tabs on foreign governments, and so I think there's a decent argument for allowing surveillance of people who are likely to be agents of a foreign power rather than requiring probable cause that a specific crime has been broken. The far more important point, though, is that since 1978, Congress has repeatedly and dramatically expanded the president's ability to conduct surveillance with minimal oversight. Whether those changes went too far in 1978, 2001, or somewhere in between is debatable. But it's clear that since 2001, the executive branch has had sweeping powers to eavesdrop on suspected terrorists with minimal judicial oversight.

What the Bush administration is doing here is moving the goalposts. In 2001, the president said that the changes to FISA that were found in the Patriot Act gave him plenty of authority to spy on terrorists that were using the latest communications technology. Now, seven years later, he's saying those reforms weren't good enough and that he needs even broader powers to spy with minimal court supervision. If Congress approves the changes the president is requesting this year, we can expect a future president sometime in the next decade to insist that she's still subject to too much judicial scrutiny. At some point, we have to say that enough is enough.