Computers, the Internet, E-mail, cellular phones-these are a few of the electronic advances that have made information and communication technology one of the fastest-growing industries in the world over the last generation. They are also some of the technologies terrorists have employed to plan and carryout, with brutal efficiency, terrorist attacks against America and across the globe.

A generation ago, in 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). In the shadow of the Nixon-era abuses, FISA was designed to regulate domestic national security surveillance by putting a layer of judicial review between the intelligence community and its targets. Under FISA, the president could monitor private communications only if he could first convince a FISA court that there was probable
cause to believe that a target of surveillance was an “agent of a foreign power,” and thus outside the purview of Americans’ Fourth Amendment guarantee of freedom from unreasonable government searches. To some, FISA struck an appropriate, if imperfect, balance between protecting Americans’ lives and their civil liberties.

Things have changed since 1978. FISA was enacted in the days before foreign-to-foreign communications passed through the United States. Today, a majority of international calls are routed through fiber-optic connections in the U.S. This means that under the antiquated FISA rules international calls that simply pass through an American phone network became domestic U.S. calls and subject to the byzantine FISA court approval process.

In the aftermath of September 11th, the 1978 intelligence program proved inadequate against the new threats posed by an unconventional and fast-moving enemy. Facing the realities of a post-September 11th world, President Bush-whose most solemn duty is to ensure the protection of the American people-created a new program for monitoring our enemies. The Terrorist Surveillance Program authorized the National Security Agency to monitor electronic communication of anyone who from within this country was communicating with suspected terrorists around the globe.

A year ago, a federal judge ruled that the Terrorist Surveillance Program is unconstitutional and thus illegal, and last January the administration agreed to place it under the supervision of the secret court that authorizes wiretaps under FISA. This meant that NSA was obliged to navigate the cumbersome process of obtaining warrants (which are about 60-pages long) to eavesdrop on suspected terrorists’ phone conversations, E-mail messages and other electronic communications, which impeded the program’s speed and agility and created a huge backlog of FISA applications that impaired intelligence collection. According to Mike McConnell, director of National Intelligence, operating under
the outdated law meant intelligence professionals were “significantly burdened in capturing overseas communications of foreign terrorists planning to conduct attacks inside the United States.”

This is the backdrop against which Congress passed the Protect America Act. In a letter to his Senate colleagues, Senate Minority Leader Mitch McConnell explained that the bill is necessary to “close critical gaps in the intelligence community’s ability to provide warning of threats to the country.” President Bush signed the legislation last Sunday.

Notably, after much wrangling, 41 House Democrats and 16 Senate Democrats-perhaps concerned about the perception of Congress leaving for a month-long recess without addressing this grave national security issue-crossed the aisle t o vote for the legislation.

The new law indeed provides the federal government greater flexibility in focusing on foreign suspects overseas, as foreign-to-foreign intercepts will no longer require a warrant. It also gives the administration more power to compel telecommunications companies to cooperate with the government in conducting lawful communication
intelligence activities and provides a robust process of judicial review for companies that wish to challenge these directives. It also protects from liability third parties that provide the government with information necessary to accomplish the acquisition of foreign
intelligence information.

Republican lawmakers did make several concessions to Democrats, however. Under the new statute, if a U.S. resident becomes the chief target of surveillance, the government would first have to obtain a warrant from the special FISA court. And , new wiretaps must be approved by both the director of national intelligence and the attorney general, not just the attorney general, as was the case under the Terrorist Surveillance Program.

Passage of the new FISA reform bill should be seen not just as a victory for President Bush but for all Americans, as its principle effect is to strengthen the president’s ability to carry out his constitutionally-mandated duty of protecting Americans from external
threats. While the Left howls that the new law tramples civil liberties, for most Americans the recent debates over the issue of terrorist surveillance have underscored a different reality: that the Bush administration’s greatest achievement-zero terrorist attacks in
nearly six years-has partially been the result of the executive branch’s ability to monitor international communications aggressively for the purpose of gathering foreign intelligence.

Though a valuable first step, the new FISA statute is merely a stopgap measure that addresses the most immediate deficiencies in our intelligence gathering programs. The new law expires in just six months, and Congress must work to enact additional reforms-like meaningful liability protection to telecom companies that cooperated with NSA’s wiretapping program after 9/11.

Lawmakers on both sides of the aisle have signaled their intention to take up more reforms as soon as Congress reconvenes in September. The question will be: At a time when the National Intelligence Estimate has said the country is in a “heightened threat environment,” will enough liberals be able to set aside their disdain for President Bush, and their goal of stripping from him as much executive power as possible, to do what is right?