In 1978, The President is Jimmy Carter. The U.S. Senate proceedings are broadcast for the first time, on radio. The Senate votes to turn over the Panama Canal. Tito is named President for Life in Yugoslavia. The Camp David accords commence, followed by a Nobel Peace Prize for Begin and Sadat. Vietnam attacks Cambodia in an attempt to end the regime of Pol Pot. The Jonestown tragedy occurs in Guyana. The Spanish Constitution officially restores democratic government in Spain.

In 1978, the Ayatollah Khomeini had not yet returned to Iran from exile in France, although the political ferment of the time is setting the stage. No hostages have yet been taken and the Shah is still in power. The Ayatollah Khomeini has not yet established state sponsorship of terrorism as a political tool. Egyptian Islamic Jihad is in its formative stages and Al Qaeda is not even a distant vision. Radical Islam as a political movement is yet to be broadly established.   

In 1978, The Soviet Union is still the dominant threat and the Cold War had not ended. The PLO and its offshoots are the dominant terror organization. Hamas and Hezbollah are yet to be established. And…….., the Foreign Intelligence Surveillance Act is passed, FISA.

History provides the vehicle for attempting to freeze a comparative moment in time and create a sense of context.   The context simply is; when you consider technology, business systems, research and development tools, scientific advances, what can you point to in 1978 that still works just as well today? Providing the rhetorical answer, nearly nothing! 

FISA established a special court to review warrants related to national security investigations. It required a warrant similar to those required in criminal investigations to provide probable cause in support of the intended activity, typically surveillance. The Act, which grew out of the Church Committee hearings, was a response to abuses occurring under President Nixon and revelations related to covert activities undertaken by the CIA.

It is not an extreme consideration to assume that a 30-year-old law, from a nearly prehistoric technological universe and in the context of an entirely new threat scenario should be revisited and revised to the realities of 2008.

There is much back and forth over the issue, many mischaracterizations, carefully worded statements from Capital Hill and a fair share of enflamed rhetoric. The bill acknowledges the technological circumstances present today, provides retroactive immunity to telecom companies and extends a number of provisions in the original Patriot Act. The Bill recognizes that instantaneous communication and an enemy that understands how to utilize technology represents a set of national security issues that are very different than they were in 1978.

The bill authorized surveillance of calls with foreign points of origination or destination with a review process but not the same manner of warrant process. It allows the National Security community to move quickly when a threat has been identified and communication in support of that threat is ongoing. 

The National Threat Assessment specifically and frequently discusses the use of technology as a growing and aggressive threat. To date I am unaware of anyone who has argued this point of analysis. Common sense prevails. It is also worth revisiting the original intention of FISA, which did not assume that non-U.S. citizens have the presumption of rights granted to U.S. citizens related to probable cause. The lapse of the current Protect America Act (PAA), which replaced the original FISA, essentially means that U.S. Constitutional rights are provided to overseas terrorist organizations. They cannot be subjected to surveillance without a court order. Under the current status of a lapsed (PAA) we are legally returned to the 1978 provisions of FISA.

As pointed out by Andrew McCarthy, recent rulings by the FISA court overturning decades of practice under FISA was the original motivation for the PAA. Some of the FISA Court’s crucial rulings were overturned by a FISA Court of Review in recognition of the change in circumstances since 1978 and recent threat assessments. The lapse of the PAA returns the state of the law to that point where the motivation existed to change the law in the first case. Only in Washington.   

Oversees surveillance and intelligent operations cannot, by their nature, and by the nature of the enemy, apply domestically accepted standards of probable cause, nor should they. That standard assumes the possession of information that is not typically possible in intelligence operations, which have as their goal the procurement of information. 

A classic Catch 22 results. If you cannot provide enough information to procure a warrant whose purpose is to procure information, you are not allowed to go out and procure the information so that you can satisfy warrant standards of probable cause.       

The reluctance in the House is solely reluctance of the leadership. The legislation is nearly assured passage and in fairness, a significant number of Democratic Congresspersons have asked for the bill to be brought to the floor. In an unusual move, the bill is going to a Conference Committee in advance of The House passing a bill different from The Senate bill, which passed 2 to 1.

Civil liberty concerns are valid, but this bill provides no additional “space” related to domestic surveillance. The probable cause standards apply just as they have under the original FISA bill. The issue of retroactive immunity for telecom companies is also an issue. The simple fact is that without this grant of immunity and the ability of telecom companies to accept National Security Community certifications, telecom companies are not going to take the chance of granting access to the very infrastructure that the surveillance depends on, not if lawsuits occur as a result of accepting certifications.