FISA, Part II

By U.S. Senator Jon Kyl I recently wrote a column about the need to amend the Foreign Intelligence Surveillance Act (FISA). In this weeks column, Id like to discuss the legislative proposals the Senate will consider in January. The Senate Intelligence Committee worked hard to address the problems posed by changes in communications technology and, after numerous hearings and countless hours of internal deliberations, produced a serious effort to solve these problems. The strength of that effort to work together to improve FISA is apparent in the overwhelming 13 to 2 vote by which the committee was able to pass a bill. Nevertheless, the committees bill contains one very troublesome provision that has come to be known as the Wyden Amendment. This provision would require a warrant for any overseas surveillance that is conducted for foreign intelligence purposes and targets a U.S. citizen or a foreign national who holds a U.S. green card. The Wyden amendment is unnecessary, it is overly broad, and it threatens to undermine overseas intelligence gathering. Under current law, a warrant generally would not be required for overseas surveillance targeted at a U.S. person if the surveillance is conducted for purposes of a criminal investigation. The Wyden amendment would create a situation in which a warrant would be required in order to monitor an overseas terrorist group that includes some U.S. citizens or green-card holders, under some circumstances in which no warrant would be required to monitor the very same people or even a group composed exclusively of U.S. citizens if that group were suspected of drug trafficking or money laundering! It should not be more burdensome to monitor al Qaeda terrorists than it is to monitor drug dealers. The Wyden amendment is also likely to damage overseas counterterrorism investigations by hindering cooperation with foreign intelligence services. In many cases, the best intelligence that the United States obtains about al-Qaeda comes from foreign governments intelligence agencies. Particularly in the Middle East, these governments frequently are afraid of al-Qaeda, or of radicalized elements of their own populations, and they are anxious to ensure that it not be made known that they are cooperating with the United States in the war against terrorists. Thus, when these foreign governments share intelligence with the United States, they often demand strict assurances that the information will not be disseminated outside of the U.S. intelligence community. The Wyden requirement would cost the United States information and cooperation from foreign intelligence services, possibly valuable information that is not available from any other source. If this Wyden language can be repaired, the Intelligence Committee bill would be a good starting point from which the Senate could work. The Senate Judiciary Committee produced the second legislative proposal, which takes a very different and (in my view) destructive approach. Among its many problems, the Judiciary Committee version of the bill would limit overseas intelligence gathering under FISA to communications to which at least one party is a specific individual target who is reasonably believed outside of the United States. That is unduly limiting. Heres an example: if the U.S. military were planning to enter and occupy an enemy-occupied city in Iraq, and the night before the invasion the commanding officer asked that all communications into or out of the city be monitored, this provision would bar such surveillance. The enemy forces inside the city, unless identified as including at least one specific individual target, would have privacy rights against the United State Army, courtesy of the U.S. Congress! In the end, Congress will need to write a law that adequately updates FISA to keep pace with the evolving technology terrorists uses to communicate. The Intelligence Committee bill should be where the Senate will begin its debate, but changes are necessary.