A most dangerous game: house democrats continue to hobble our intelligence services.(AT WAR)(Foreign Intelligence Surveillance Act)

When the clock struck midnight on the evening of Saturday, February 16, American intelligence services were for all practical purposes shorn of their ability to monitor the communications of newly discovered terrorists and spies operating outside the United States. House Democrats had simply not found time to consider straightforward legislation--a bipartisan bill that had passed the Democrat-controlled Senate by a 2-1 margin--that would have given our intelligence agencies the ability to continue monitoring communications among terrorists.

Here are the facts. Before February 17, U.S. intelligence agencies operated without restriction when eavesdropping on foreigners who communicated with each other outside the United States. Persons who are neither Americans nor acting within U.S. borders do not have privacy protection under U.S. law. The NSA and CIA were thus able to monitor our enemies without being subject to the practical impossibility of justifying each instance of surveillance in the fashion specified by the Foreign Intelligence Surveillance Act (FISA).

FISA's authors took pains to distinguish foreign from domestic surveillance, and intended their legislation to apply only to the latter. Unfortunately, rather than using straightforward terms such as "domestic" and "foreign," they referred to "wire" and "radio" communications. This was a function of 1970s communication technology: "Wire" meant domestic telephone calls, and FISA was to govern the interception of calls inside the U.S., thus shielding Americans from unauthorized surveillance. But the intelligence services had a free hand when intercepting microwave or radio transmissions outside the U.S. (the focus of NSA satellites).

This distinction has, however, been overtaken by new technologies. In the digital age, communications travel through global networks, and a call or e-mail from Afghanistan to Iraq is likely to pass through U.S.-based communications hubs. The fact that bits of information are zooming through American switches does not make such a communication domestic instead of foreign. But it did give a judge on the FISA court--the secret tribunal created by FISA to oversee domestic intelligence-gathering--the justification to rationalize, in early 2007, that any communication was now potentially a "wire" communication, and hence subject to the court's jurisdiction.

Suddenly tens of thousands--potentially millions--of foreign-to-foreign communications were brought under FISA's sclerotic protocols. If the CIA and NSA wished to conduct surveillance of such communications, they would now have to demonstrate that they had probable cause to believe that the target of surveillance was an agent of a foreign power. They would have to provide a written account of their evidence, explain the "minimization procedures" in place to assure that eavesdropping was limited to relevant conversations, and offer, in the statute's language, "a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance." They would have to provide certifications from executive-branch officials that the surveillance was for the purpose of collecting foreign intelligence, and they would even be required to explain why the same information could not be ...