I may have made a mistake in my column this week about the FISA legislation passed by the House, although it’s difficult to tell for sure given the technical nature of the bill’s language and fierce disagreements between even moderate Republicans and Democrats on the Committee about what the bill actually does contain.
Democrats say that I was wrong to report that the bill includes a FISA court review of individual foreign terrorist targets who might communicate with U.S. persons, although it does include an annual “basket” review of procedures used by U.S. intelligence agencies to target foreign suspects. The Republican Committee staff disagrees and says my reporting is correct.
I have to side with the Democrats. I reported as fact a provision of the bill that seems to be disputable, to say the least. Clearly, I didn’t do sufficient vetting of the facts.
I also agree with the Democrats that the annual review of intelligence procedures–the so-called “basket warrants”–is not an unreasonable request. In fact, the ranking Republican on the Committee, Peter Hoekstra, told me he would be willing to include “basket warrants” as part of a comprehensive package that also included limited immunity for those telecommunications companies that could produce written requests from the government—i.e. requests from the Justice Department or the White House—for intelligence information, especially if they involve requests of the sort that would be legal if the comprehensive FISA package passes.
I was clearly wrong to state as fact something that might not actually be in the bill.
BUT, we are talking about relatively obscure and unimportant technical details and my larger point—that a bipartisan, veto-proof House FISA was possible, but was opposed by the Democratic leadership—is still true. That bill would have included provisions, like the “basket” reviews, that George Bush clearly opposes. I think the political value of beating Bush on this issue, in a bipartisan fashion, could have set an important, if belated, precedent for the limits of executive power. The Senate FISA bill still might accomplish that.
Another larger point I made is also true: In the coming campaign, Republicans will try to misrepresent any partisan FISA Democratic bill as providing “civil rights for terrorists.” There are those who say, So what? Democrats should stand for what they believe. To which I say, it depends on the issue and the details and the principle. Stand against unprovoked unilateral pre-emptive war, even if it means the Republicans will claim the Democrats are soft on terrorism? Absolutely. Stand for a new foreign policy of international cooperation rather than bullying? Absolutely. Stand for a careful withdrawal from Iraq starting now? Absolutely.
But in the FISA case, there is a chance for bipartisan support for the following broad principles:
–That the use of new surveillance technologies, like data-mining, to monitor foreign intelligence targets is appropriate.
–That if a suspicious pattern of communications between a foreign target and a US person is found, a FISA warrant must be granted to monitor those communications.
–That the identities of any innocent US persons caught up in such data-mining operations should be “minimized” or blacked out.
I believe that Republican concessions (on “basket warrants”) and Democratic concessions (on immunity for telecoms who allowed access to information, after receiving a direct written request from the government, in a way that would be legal under the new law) are a small price to pay for the larger principle of defining the 4th Amendment rights of US residents in the light of new technologies.
Finally, if we can’t rebuild the non-toxic atmosphere of bipartisan cooperation that served the country through most of its history few, if any, of the reforms most Democrats favor will have any chance of passage, even with a Democratic President and Congress. We simply need to get past the cynicism and partisan mistrust cultivated by the Bush Administration.
Update: Some readers have jumped to the mistaken conclusion that I spoke only with Republicans regarding the FISA bill. Not true. As usual, I spoke with people in both parties—but I may have misinterpreted a Democratic source’s point about the difference between individual and “basket” warrants. If I did, a correction will appear in the print magazine next week. But, as I said above, there are disputes about what the bill’s language actually means and I need further clarification, just to be sure I get it right…this time.