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Posted by Kari Chisholm on Monday, December 10, 2007

Protecting the Rights of Americans Overseas

For nearly 30 years, the Foreign Intelligence Surveillance Act of 1978 (FISA) has represented the ultimate balance between our needs to fight terrorism ferociously and to protect the constitutional rights of Americans. It is an important balance and one that should not be eliminated simply because an American leaves U.S. soil. Shouldn’t it mean something to be an American, even outside the United States?

Under current law, before conducting surveillance on an American citizen within the United States, the government must establish probable cause before a criminal court for law enforcement cases, or before the Foreign Intelligence Surveillance Court for intelligence cases. This means that the U.S. government needs a court-approved warrant  to deliberately tap the phone conversations of an American living in Medford, Oregon, or in Arlington, Virginia. This protection, however, is not extended to Americans outside the country. If the U.S. government wants to deliberately tap the phone conversations of those same Americans on business in India or serving their country in Iraq, the attorney general can personally approve the surveillance by making his own, unilateral determination of probable cause.

During the Senate intelligence committee’s consideration of legislation that would revise FISA, I offered an amendment that would require the government to secure a warrant from the FISA court before targeting an American overseas. This amendment, which was co-sponsored by Sens. Russ Feingold (D-Wis.) and Sheldon Whitehouse (D-R.I.), was approved by the committee on a bipartisan vote. Since then it has been upheld by the Senate Judiciary Committee, and I look forward to its consideration by the full Senate this week.

The White House was quick to call my amendment a "step backwards," apparently because it creates a warrant protection that was not included in the original  FISA law. While it is no surprise that the current administration would object to any check on executive power, if the attorney general is already doing the job of establishing probable cause to target  Americans abroad, getting a warrant would create no real additional burden. To the best of my knowledge, not even the Bush administration has argued that getting a warrant in such cases would have a negative impact on national security. During the  initial consideration of the Foreign Intelligence Surveillance Act in 1978, many members of Congress argued for the inclusion of protections for Americans overseas. Every committee that debated the bill noted the significance of this issue, but lawmakers concluded that it was best addressed by separate legislation. For example, the Senate intelligence committee’s 1978 report on FISA stated that "further legislation may be necessary to protect the rights of Americans abroad from improper electronic surveillance by their Government." Thirty years later, it is time to take action.

In addition to being wise policy, including protections for Americans abroad in FISA will reduce the likelihood that the law may someday be found unconstitutional. The judicial branch has not definitively settled the question of whether Americans overseas are covered by the protections of the Constitution. It is possible, however, that the Supreme Court will answer this question at some point; and, as I am sure the administration would agree, if the courts were to someday strike down portions of FISA, Americans would be the ones left vulnerable.

The legislative branch’s responsibility is not simply to constrain the administration’s authority. Members of Congress have a duty to work with the president to uphold national security and protect the American people. I and many other members of Congress agree with the president that it is no longer practical or in our national security interest to wait to secure a warrant before listening to a targeted foreigner’s conversation, even if there is a chance that the foreigner will call the United States. Congress should accept the need to modernize FISA — and acknowledge the privacy impact of doing so — but lawmakers also have an obligation to seize this opportunity to defend the Constitution and extend Americans’ privacy rights where appropriate.

In the digital age, it makes little sense that an individual’s relationship with his or her government should depend on that individual’s physical location. Congress and the president have an opportunity to recognize this and to affirm that no matter where an American is in the world, it always means something to be an American.