The Terrorist Bill of Rights

The Democrats’ national security agenda seems designed, point by point, to destroy the means by which we have been protected since 9-11.

First, they want to revise the Foreign Intelligence Surveillance Act to impose the severest — and almost certainly unconstitutional — restrictions on the gathering of intelligence data by intercepting telephone calls and e-mails. If the Dems have their way, not only will the NSA and CIA have to get FISA warrants to intercept communications between terrorists abroad and people in the US, but also for everything except conversations between two foreign citizens overseas. If it is amended to broaden its coverage so greatly, the FISA court will be too swamped with applications to deal with warrants or anything else, and counter-terrorist intelligence gathering will essentially stop.

Never mind the fact that FISA cannot impede the President’s constitutional power to gather intelligence. The Dems want to do it anyhow.

Second, the Dems want to reverse legislation passed only about two years ago to extend habeas corpus rights to terrorist detainees at Guantanamo Bay, Cuba or wherever else they may be held.

It was only last October that Congress passed — and the President signed — legislation that barred terrorist detainees from habeas corpus rights in federal courts. But that was then, and this is now. (Of course they don’t want to change part of that same legislation that redefined terrorist interrogation methods to add terms so vague — “cruel and inhuman treatment” — that so confuses the definition of “torture” that no one knows what’s legal or not any more.)

If all these things sound familiar, they should. If only Harry Blackmun were with us still, he could almost certainly say that the Fourth and Eighth Amemdments had “penumbras” in them that could be extended to create those rights in terrorists. The first could be traced to the Fourth Amendment (unreasonable search and seizures) and the second to the Eighth. All the Dems need is a few more penumbras, a couple of emanations and a citation or two to European law to accomplish what they apparently want: a terrorist bill of rights.

The first part — remaking FISA to prevent effective intelligence gathering — won’t be achieved any time soon. I spoke Wednesday with the ranking Republican on the Senate Select Committee on Intelligence, Christopher (“Kit”) Bond of Missouri. Sen. Bond, whom I’ve known off and on for almost two decades, was more animated on FISA than I’ve ever seen him on any issue.

I wonder if Missourians — or any Americans — really appreciate how important Bond’s work really is. Before the FISA amendments he shepherded through in August became law, we had missed (according to one intelligence community source) roughly six months of intelligence data on communications by terrorists to people in the United States. Which meant we had been blind for about that amount of time.

Really blind. If that information isn’t obtained through intercepted communications, it’s not going to be obtained at all. Intelligence is the single most important tool we have to disrupt terrorists and prevent them from attacking successfully. If we don’t get it we are vulnerable. Horribly so. Kit Bond is working hard to keep the blinders off our intelligence gatherers.

Bond eagerly shot down some of the misconceptions the Democrats and their amen chorus in the media are selling on the FISA amendments just completed before the August recess. First, did the August amendments expand FISA to make it easier to eavesdrop on Americans? “No, that’s not true,” said Bond. In fact, all the August amendment did was fix a new problem to restore FISA coverage and restore FISA to the way it functioned beforehand.

One of the other rumors is that the August amendments enabled intelligence agencies to search business records. Not true, according to Bond (or the public text of the law). Bond told me, “…this is an amendment to the communications sections and some people are saying that it gives the agency the right to search business records without a warrant and I don’t know where the heck they come up with that…It’s just not there.”

Speaker Pelosi has called for major revisions of FISA but Senate Democrats are holding their cards more closely to their chests. Bond doesn’t know what Majority Leader Harry Reid (D-Nev) or SSCI Chairman Jay Rockefeller (D-WV) plan to mangle FISA. But Bond is pretty sure they’re not going to be able to do it. Why?

“Well we got seventeen Democrats to join us in the sixty votes for my bill. But that still left twenty-eight of them voting the other way. And Harry Reid said this was a totally flawed piece of legislation. He’s never explained to me, and I never cared to ask him, why it’s totally flawed. So I would say that we’ll have a full court press by the Democrats to impose their views, which would make the program unworkable,” Bond said.

Bond told me that the Dem’s preferred approach would kill the function of the FISA court: “We understand that the FISA Court judges urgently support a more appropriate alignment of the court’s caseload and jurisdiction, away from the focus on non-US persons operating outside of the United States. The judges have clearly expressed frustration with the fact that so much of their docket is consumed by applications that focus on foreign targets and involve minimal privacy interest of Americans.” Those facts — right from the people who have to deal with FISA every day — should be enough to prevent the Dems from pulling off their plan to blind our intelligence gatherers.

There will be another round of FISA amendments in six months or less. Republicans insisted on the “sunset provision” for the August amendments. Why? Because they believe — and the intelligence community insists — that FISA needs more than a small patchwork fix. It needs a modernization overhaul.

FISA will be modernized, but it will not be remade into a bar to effective intelligence gathering. One thing that will be added, as Sen. Bond said, will be a provision that protects communications companies — carriers — cooperating with the government from civil liability. He added that Chairman Rockefeller has agreed that retroactive carrier liability will be part of a new bill. Fear of lawsuits could be a major bar to companies’ cooperation. That problem is one Bond is determined to solve.

FISA won’t be made into part of the Dems’ terrorist bill of rights. Not while Kit Bond has a say in it.