What's Really in the RESTORE Act
I was pleased to see Time Magazine columnist Joe Klein acknowledge that he "may have made a mistake" in his column attacking the House Majority ("The Tone Deaf Democrats") and misrepresenting the RESTORE Act. Unfortunately, Mr. Klein still professes confusion toward the bill's contents and continues to question whether the House should have passed it in the first place.
As one of the bill's authors, I want to set the record straight about what's in the RESTORE Act, why it's needed to safeguard Americans from unwarranted surveillance, and ultimately, why it will lead to better intelligence gathering.
In his original column, Mr. Klein incorrectly wrote, "Unfortunately, Speaker Nancy Pelosi quashed the House Intelligence Committee's bipartisan effort and supported a Democratic bill that - Limbaugh is salivating - would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only." It contains no such provision.
(Also, as someone closely involved in trying to produce a good bill, I cannot figure out what bipartisan House Intelligence Committee effort Speaker Pelosi "quashed" that Mr. Klein could possibly be talking about. Several Republicans proposed something close to last August's Protect America Act, but that never got anywhere.)
Let me repeat: our bill gives the intelligence community the tools and flexibility it needs to listen to the conversations between those who wish to do us harm. This bill provides exactly what the Director of National Intelligence asked for earlier this year: it explicitly states that no court order is required to listen to the conversations of foreigners that happen to pass through the U.S. telecommunications system. It does not grant Constitutional rights to foreign terrorists.
What we have not agreed to do is give this or any other President a permanent blank check to spy on you, your family, the members of your congregation, or any other American citizen without any judicial oversight - a position shared by an overwhelming majority of Americans according to the latest public opinion surveys on the topic.
If federal intelligence and law enforcement agencies want to read the email or listen to the phone call of an American citizen, they have to get - except in emergencies - a judge to issue a warrant allowing them do so, as the Fourth Amendment to our Constitution requires. Such a court order would be easy to get if there is cause to believe that the American's communications are important intelligence for the protection of our security. And in such "emergencies" there would be quick after-the-fact review by the courts. These are not "unimportant, obscure technical details" - this is the heart of the bill.
In an era where the government can conduct searches and seize the contents of communications without even alerting citizens to the government's presence, building in such safeguards is even more important than in James Madison's day, when if the King's men were coming to take you or your papers, you at least saw them walking up to your door before they kicked it in.
This bill is not simply about "defining the 4th Amendment rights of US residents in light of new technologies" - as Mr. Klein wrote in a later posting. As I've previously noted, our bill will only strengthen and improve intelligence collection and analysis. It has been demonstrated that when officials must establish before a court that they have reason to intercept communications - that is, that they know what they are doing - we get better intelligence than through indiscriminate collection and fishing expeditions.
What our bill does is both protect Constitutional norms and require that the government meet some basic evidentiary standards - as evaluated by a judge - before allowing the National Security Agency, the FBI, and the other elements of our federal law enforcement and intelligence communities to conduct surveillance on Americans. Having to meet a standard in the intelligence business isn't simply about protecting American rights, it's about targeting the right people in the first place. We must not let anyone advance the bogus argument - repeated by Mr. Klein - that protecting American's against unwarranted search and seizure necessarily requires a compromise in their security. The opposite is true.
It is interesting that the principles Mr. Klein proposes and claims a bipartisan bill should include are included in the bill as written and passed by the House: the use of new surveillance technologies against foreign targets is appropriate; if a suspicious pattern is found between a foreigner and a US person, a warrant would be needed to monitor those communications; and the identities of US persons caught up in those intercepts would be minimized so the identities would not be known or used.
Mr. Klein is correct that Republicans will try to misrepresent the RESTORE Act as "civil rights for terrorists." They have already used these scare tactics and will continue to make false, hyperbolic statements about the bill. However, protecting Americans is too important for Democrats to allow such scurrilous attacks to lead them to sacrifice legislation that adheres to the principles that are necessary to protect Americans.
The House should be proud that it passed a bill that would strengthen the intelligence collection facet of our national security efforts and strengthen our Constitutional protections. This is the kind of tough-minded, hard-thinking legislation that is needed in this complicated and dangerous world. I can only try to get the Senate to do as well, and then hope that the President would approve it.
Posted November 27, 2007 | 12:33 PM (EST)