The Foreign Intelligence Surveillance Act (FISA) was drafted
almost thirty years ago, for the purpose of establishing a process for
obtaining a court order to conduct foreign intelligence surveillance in
the United States.
However, as a result of revolutions in telecommunications
technology since FISA was passed, FISA now often requires the Government
to get a court order to collect information on terrorists and other
foreign intelligence targets located overseas.
It makes no sense to require the Government to obtain a court
order to collect foreign intelligence on foreign targets located in
foreign countries. This requirement impairs our intelligence
capabilities, and diverts scarce resources that would be better spent
safeguarding the civil liberties of Americans, not foreigners who wish
to do us harm.
As the Director of National Intelligence has reported, as a
result of this outdated law we now are "missing a significant amount of
foreign intelligence that we should be collecting to protect our
country." This is unacceptable at any time-but it is intolerable in the
current heightened threat environment.
The Director of National Intelligence Has Proposed A Reasonable Solution
The Administration proposed a comprehensive FISA modernization
bill to the Congress several months ago. However, Congress has made it
clear that they will be unable to act upon the Administration's full
proposal before the August recess.
In an effort to address this critical intelligence gap, the
Director of National Intelligence has proposed a significantly narrowed
proposal focused on the current, urgent need to protect our Nation.
This new proposal would substantially enhance our capabilities
to collect intelligence on targets located overseas. It would also
preserve a role for the Foreign Intelligence Surveillance Court in
reviewing the Government's procedures for collecting intelligence on
these overseas targets. This is an effort to balance court review and
our urgent need to close the current intelligence gap.
The court review procedures would not stand in the way of
starting collection of foreign intelligence immediately. The Government
would have 90 days after collection has started to submit its procedures
to the court for review. If the court found any deficiency, collection
would continue during any and all court review processes.
What Is Not Acceptable
Some have proposed that the Government must obtain pre-approval
from a court before it conducts critical surveillance of targets located
overseas. This is unacceptable. The Government must be able to act
immediately, particularly in the case of national security emergencies,
to protect the Nation.
Some have suggested that FISA must be reformed, but only to
permit collection against certain overseas threats like al Qaeda
terrorists. This is unacceptable. There are many threats that confront
our Nation, including military, weapons proliferation, and economic, and
we must be able to conduct foreign intelligence effectively on all of
Some have suggested that we must wait to modernize FISA. This
is unacceptable. Congress must act now to give our intelligence
professionals the tools they need to uncover plots in time to protect
Some have suggested that a court order should be necessary
before our intelligence professionals are able to gather any information
about a foreign target who happens to contact someone in the United
States frequently. This is unacceptable.