As the first Congressional hearings into the National Security Agency's surveillance program begin Monday in the Senate Judiciary Committee, senior administration officials continue to claim that the Foreign Intelligence Surveillance Act, or FISA, is not nimble or powerful enough to permit time-sensitive surveillance of potential terrorists in the United States.
Former NSA Director Michael Hayden recently told the National Press Club, "I don't think that anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11."
Having reviewed changes made to FISA over the past four years, I disagree and believe that the activities of the NSA program can -- and should -- be accomplished within the law, not by circumventing it.
In the weeks following the Sept. 11 terrorist attacks, the Bush administration backed sweeping amendments to FISA as part of the Patriot Act and other legislation, but did not ask Congress for authority under FISA to conduct what the president now calls a "terrorist surveillance program." In fact, the administration's lobbying campaign for the Patriot Act was based on the argument that the act would modernize FISA and give the NSA new authorities to conduct electronic surveillance against terrorists inside the United States.
One provision (Section 214) lowered the legal standard for obtaining a court order for pen registers and trap-and-trace devices -- the taps placed on telecommunications devices to collect information about who is contacting whom. Another provision (Section 216) explicitly allowed these taps to collect information from Internet or e-mail traffic. A third section (Section 206) created "roving John Doe" wiretap authority to deal with the issue of terrorists switching cell phones.
And in 2002, Congress extended the FISA emergency provision to 72 hours, so that surveillance is not delayed by the paperwork involved in getting a warrant.
Since 1979, only four of nearly 19,000 warrant applications have been turned down by the FISA court. Administration claims that filings are cumbersome are not echoed by those who prepare them.
Given this powerful authority, why did the Bush administration not use FISA?
Attorney General Alberto Gonzales provided a hint. In a speech defending the program, Gonzales said that the NSA surveillance could begin whenever the government determined that there was "a reasonable basis" to believe that the individual was affiliated with a terrorist group.
The FISA standard, however, is not "reasonable basis," but rather the more stringent "probable cause" standard of the Fourth Amendment. ("No Warrants shall issue but upon probable cause.") It seems that the Bush administration did not think it could meet the legal standard, so it was unilaterally lowered. Hayden admitted as much, stating that the NSA program had a "softer trigger" than what is necessary to obtain a FISA warrant. If true, this is a breathtaking expansion of executive power.
Moreover, the administration rejected a proposal from Sen. Mike DeWine, R-Ohio, in 2002 to lower the FISA standard from "probable cause" to "reasonable suspicion." In rejecting a lower standard, the Justice Department, then led by John Ashcroft, stated that a lower standard might be unconstitutional and could, if determined to be unlawful, jeopardize ongoing prosecutions.
In short, not only did the president change the law without telling Congress, but his own Justice Department said that this change to the law might be unconstitutional.
The NSA program, on which I have been briefed, is a critical tool to disrupt terror plots against Americans. But only Congress, not the President, can alter the FISA standard. That's a debate Congress must have. That is why the House and Senate Intelligence Committees must be fully briefed on the scope of the program and then hold legislative hearings.
Meeting with victims of Saddam Hussein's torture chambers in recent weeks, Bush declared, "the tyrant was a law unto himself." Apparently, the irony was lost on our president.
Rep. Jane Harman, D-Venice (Los Angeles County), is the ranking member on the House Permanent Select Committee on Intelligence.
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