This dangerous situation should never have arisen. From the beginning, presidents have exercised their Article II executive power to gather foreign intelligence — in war and peace alike, without congressional or judicial intrusion. As our principal agent in foreign affairs, the president is constitutionally bound to protect the nation. For that, intelligence is essential.
Intelligence is essential on the domestic side as well, where law enforcement is the president’s main function. Yet not until 1967 did the Supreme Court require warrants for electronic surveillance. Congress codified that a year later. But both the court and Congress expressly exempted foreign‐intelligence gathering from the warrant requirement.
Unfortunately, the exception was not to last. Following the Vietnam War, Congress increasingly inserted itself into foreign affairs, as with the 1973 War Powers Act. With the Foreign Intelligence Surveillance Act, passed in 1978, Congress began micromanaging foreign intelligence gathering. That produced the “wall” between foreign and domestic intelligence gathering — with foreign‐intelligence agents focused on security, and domestic agents on prosecution and hence on obtaining “admissible” evidence. Neither side talked to the other. Many believe the resulting communications failures played a role in 9/11.
In the aftermath of 9/11, believing FISA to be hopelessly inadequate, President Bush instituted his terrorist surveillance program (TSP) — but not before advising key members of Congress. Nevertheless, a firestorm ensued when the New York Times made the program public in December 2005. The controversy continued until January 2007, when the White House announced that henceforth it would gather intelligence under FISA’s antiquated restrictions.
Cooler heads in Congress grew concerned after Director of National Intelligence Michael McConnell testified in July that “we’re actually missing a significant portion of [the intelligence] we should be getting.” That led to last August’s six‐month fix, which expires this week.
Obviously, this is no way to conduct the serious business of foreign intelligence. The ever‐changing rules — criminalizing transgressions — leave officials playing it safe in a world of risks.
The Senate bill would be an improvement, not least because it provides retroactive liability protection for telecom companies that allegedly assisted the government after 9/11. But the deeper problem is the very idea of congressional micromanagement.