Congress intends to pass a bill to reform FISA and allow signals intelligence to resume its mission. via Big Lizards

FISA needs to be updated. It was passed in the 1970s to set guidelines on espionage against the Soviet Union. Technology and the nature of the enemy has radically changed since then.

A judge ruled this year that the US needed warrants to collect signals intelligence between Pakistanis talking to other Pakistanis in Pakistan. What? Legalism is seriously affecting the mission.

Communications radically changed since FISA was passed. Today, there is the internet and cell phones. Back when FISA was written, the FBI and CIA had to manually install bugs in phones, so they needed legal warrants when conducting espionage on Americans or on American property.

Today, such bugs are unnecessary. Even better, most communication lines run through the US thanks to fiber-optics and satellites. So if two Pakistani Taliban members talk over a cell phone or send out emails to each other, the messages may travel through US servers and communications lines. Much of our enemy’s communications is literally dropped on our doorstep every morning for us to read at our leisure.

This should be a signals intelligence windfall, yet it is not, thanks to FISA. Due to abstract legalism, the US must obtain a warrant every time it wants to conduct espionage on overseas militants who are not American citizens. The FISA courts are slow, antiquated and unable to keep up with the lighting fast pace of war.

Congress recognizes this problem and is making a move to reform and update FISA.

Rep Boehner describes the problem:

“There’s been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States,” Boehner told Fox News anchor Neil Cavuto in a Tuesday interview.

“This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people,” he said. Boehner added that some Democrats are aware of the problems caused by the judge’s restrictive ruling and the problems it has caused for the administration’s surveillance of terrorism suspects.

There are two bills. One is the McConnell/Bond bill which the Director of National Intelligence supports, and there is the Rockefeller bill which the DNI opposes.

DNI Mike McConnell:

Last week, McConnell told the Center for Strategic and International Studies that the government faces “this huge backlog trying to get warrants for things that are totally foreign that are threatening to this country.”

Gaining access to the foreign communications at issue would allow the NSA to tap into the huge volume of calls, faxes and e-mails that pass from one foreign country to another by way of fiber-optic connections in the United States.

The DNI requests that Congress grant the executive branch the decision-making power to authorize communications surveillance of militants overseas who are not citizens. Presumably, this will be reviewed after the fact by Congress and the Courts to prevent abuse or mission-creep. And of course, any surveillance on US citizens will still require a warrant. The goal of this reform is to stop granting foreign militants de-facto citizenship and legal protection.

The Executive Branch is better designed to react to intelligence needs than the Judiciary. Traditionally, the Judiciary defers decision-making in foreign policy to the President, and for good reason. The President is inside the feedback loop and can adapt to new information – the Courts are not. The FISA courts are an exception to this rule. It’s a Soviet-era dinosaur that at the very least needs to be updated to accept new technology and SIGINT techniques.

A good compromise would retain the FISA courts and use them to review overseas warrantless surveillance.