The FISA Flap

There's a lot of discussion in Washington these days (and hence in the political pundit world) about FISA and the need to update it. FISA is the Foreign Intelligence Surveillance Act of 1978, and it governs the collection of counterintelligence information in the U.S. It's one of the sources of Bush's "warrantless wiretap" programs. Who cares? Well, as a former intel guy, I do. So bear with me a bit.

Everybody agrees that FISA is outdated. When it was passed in 1978, it was designed around communications systems and "foreign" organizations that were very different than they are now. Today we have the internet, packet-based communications, GPS, satellite phones, cell phones, calling cards, IM, email, MySpace, and a host of other ways to communicate. In 1978, we were still getting used to push-button phones. Today we have do counterintel operations against foreign governments, known terrorist groups like Al Qaeda, unknown groups that do an attack and then vanish, "sleeper" cells connected to who knows what groups, trans-national organizations that may work with terrorists occasionally, and any permutation of the above that your brain can conceive. Basically, the entire problem is incredibly more difficult. Back then, you pretty much knew who your enemies were and what kind of communications they were likely to use. Now, we need to find out who our enemies are, and they can use (okay, they are using) the same communications systems that all of us are using.

This week I'm hearing a lot of noise about getting a new FISA bill passed before Congress goes out on recess for a month. To me, this is bad news. Any bill that's rushed through is a bad bill. They're rushing it because they don't want people to take a close look at parts of it.

One part that I don't like is that (reportedly) the proposed bill gives the Attorney General more leeway to authorize counterintelligence programs. Ordinarily, I wouldn't have a problem with this as most of our Attorneys General have been forthright, honest, and ethical men. But our current Attorney General is, unfortunately, Alberto Gonzalez, who has proven to be neither forthright, honest, nor ethical. Giving him expanded powers would be like giving automatic weapons to Attila the Hun. Pass this bill now and say goodbye to any protection for our civil liberties by the Justice Department.

Mike McConnell, our National Intelligence Director (and a forthright, honest, and ethical man), is right when he says we need a new FISA and we need it yesterday. But something this important needs to be carefully vetted first.