Faced with FISA
The Hidden Columnists--David Brooks Edition (22 Dec)

In which Mr. Brooks asks that you walk a mile in the President's shoes while contemplating how to keep America safe--abiding by FISA (the Foreign Intelligence Surveillance Act), modifying through Congress, or going around it (here's the link to Big Brother Is You; full column available to Times Select subscribers).

You know that one of the few advantages we have over the terrorists is technological superiority. You are damned sure you are going to use every geek, every computer program and every surveillance technique at your disposal to prevent a future attack. You have inherited the FISA process to regulate this intelligence gathering. It's a pretty good process. FISA judges usually issue warrants quickly and, when appropriate, retroactively.

But the FISA process has shortcomings. First, it's predicated on a division between foreign and domestic activity that has been rendered obsolete by today's mobile communications methods. Second, the process still involves some cumbersome paperwork and bureaucratic foot-dragging. Finally, the case-by-case FISA method is ill suited to the new information-gathering technologies, which include things like automated systems that troll through vast amounts of data looking for patterns, voices and chains of contacts.

Over time you've become convinced that these new technologies, which are run by National Security Agency professionals and shielded from political influence, help save lives. You've seen that these new surveillance techniques helped foil an attack on the Brooklyn Bridge and bombing assaults in Britain. The question is, How do you regulate the new procedures to protect liberties?

Your aides present you with three options. First, you can ask Congress to rewrite the FISA law to keep pace with the new technologies. This has some drawbacks. How exactly do you write a law to cope with this fast-changing information war? Even if you could set up a procedure to get warrant requests to a judge, how would that judge be able to tell which of the thousands of possible information nodes is worth looking into, or which belongs to a U.S. citizen? Swamped in the data-fog, the courts would just become meaningless rubber-stamps. Finally, it's likely that some member of Congress would leak details of the program during the legislative process, thus destroying it.

Your second option is to avoid Congress and set up a self-policing mechanism using the Justice Department and the N.S.A.'s inspector general. This option, too, has drawbacks. First, it's legally dubious. Second, it's quite possible that some intelligence bureaucrat will leak information about the programs, especially if he or she hopes to swing a presidential election against you. Third, if details do come out and Congressional leaders learn you went around them, there will be blowback that will not only destroy the program, but will also lead to more restrictions on executive power.

Your third option is informal Congressional oversight. You could pull a few senior members of Congress into your office and you could say: "Look, given the fast-moving nature of this conflict, there is no way we can codify rules about what is permissible and impermissible. Instead we will create a social contract. I'll trust you by telling you everything we are doing to combat terror. You'll trust me enough to give me the flexibility I need to keep the country safe. If we have disagreements, we will work them out in private."

These are your three options, Mr. President, and these are essentially the three options George Bush faced a few years ago. (He chose Option 2.) But before you decide, let me tell you one more thing: Options 1 and 2 won't work, and Option 3 is impossible.

Options 1 and 2 won't work because they lead to legalistic rigidities and leaks that will destroy the program. Option 3 is impossible because it requires trust. It requires that the president and the Congressional leaders trust one another. It requires Democrats and Republicans to trust one another. We don't have that kind of trust in America today.

That leaves you with Option 4: Face the fact that we will not be using our best technology to monitor the communications of known terrorists. Face the fact that the odds of an attack on America just went up.

I'm still getting up to speed on FISA (its secret court, warrants, etc.), but from what I've been reading, it seems that FISA warrants have been secured without too much hassle and that there is a 72-hour retroactivity built into it. As Mad Eye Moody would say in the Harry Potter books, we need to be constantly vigilant to keep our nation (and other nations) safe from the indiscriminate wrath of terrorist strikes. But it also seems to me that one of the goals of terrorist organizations is to foment paranoia within our culture and force ourselves to change our values. And that's at the heart of this matter--we don't have to choose between safety and civil liberties. We're not choosing a police state over an anything goes libertarian utopia. Safety and civil liberties can coexist just fine together with a bit of work and dialogue.

The heart of the matter is that the executive branch of our government is breaking the covenant of the checks and balances that are at the heart of our democratic design. And there's a reason for worry, as this commentary by Philip James in The Guardian reminds us:

The warrant law is not some tiresome piece of procedural bureaucracy, but the only safeguard against the executive branch of government targeting anyone they don't particularly like for any reason of their choosing. It was put in place after the Watergate scandal demonstrated how easily the White House could persecute its perceived political opponents by drawing up secret enemies lists.

In an astonishing display of candour, Dick Cheney now looks back on the Nixon presidency with chilling nostalgia, ruing the loss of unfettered executive power. "Watergate and Vietnam served ... to erode the authority I think the president needs to be effective, especially in the national security area," opined the vice-president to a gaggle of reporters in the cabin of Air Force Two, as they flew over the Middle East.

Dick Cheney isn't the only one prone to bouts of nostalgia, nowadays. I have begun to look back on my first close encounter with American power. I was a young journalist covering the Reagan-Gorbachev summit in Moscow. The sight of the presidential motorcade growling through Red Square, literally pulling up to the front door of the "evil empire" was nothing less than awesome. But something that seemed insignificant at the time stayed with me.

I was struck by how fascinated Gorbachev's security detail was with its American counterpart. As the two delegations negotiated the end of the Soviet Union inside the Kremlin, outside KGB agents marvelled at the air conditioning of the secret service agents' Chevy Suburbans, the superior fabric of their suits.

The Russians' eyes revealed more than material envy, however. They betrayed the acknowledgment that the Americans represented to them the pinnacle of individual freedom, while they remained locked in the dark ages of a repressive state. I wonder if today's Russians still marvel at America in the same way, an America that cannot clearly renounce torture as an acceptable method of interrogation and sanctions secret spying on anyone the president considers threatening.

While the rest of the world may have lost faith in America long ago, President Bush is counting on the continued support of Americans. He has calculated that, after 9/11, the American people are prepared to trade some constitutional liberties for personal safety. It is a cynical calculation that has worked so far. So far fear has triumphed over hope.