Experts at Odds Over FISA Role In Terrorist Surveillance

By Nathan Burchfiel | July 7, 2008 | 8:32pm EDT

( - National security experts disagreed Friday over the role of the Foreign Intelligence Surveillance Act (FISA) in monitoring possible terrorist activities.

"Since time immemorial it is not just the power but the obligation of the commander in chief ... to gather any and all military intelligence about the enemy," Todd Gaziano, director of the conservative foundation's Center for Legal and Judicial Studies said during a discussion at the Heritage Foundation in Washington, D.C.

Gaziano argued that the National Security Agency's secret terrorist surveillance program, which was leaked to the New York Times in December 2005, is a vital information-gathering apparatus and falls within the powers granted to the president by the Constitution and by congressional authorization for use of force in the war on terrorism.

The Bush administration in January announced that it was working with the FISA court to bring the program under its jurisdiction - a position the administration had previously opposed, citing its belief that the program was legal without the court's oversight.

Mary DeRosa, a senior fellow at the Center for Strategic and International Studies, said during the discussion that while the 1978 FISA law is outdated, it is important for protecting civil liberties and promoting transparency.

She said President Bush's agreement to bring the program under FISA supervision now illustrates that it is possible for the government to conduct its surveillance within the law.

"It was at best an inconvenience," DeRosa said of the FISA requirement that the government obtain warrants before wiretapping phones under the program, "but it was not impossible, because if it's possible now it was possible earlier on."

"Electronic surveillance of terrorists and for purposes of fighting terrorism is extremely critical, and we don't want to have ourselves hindered in our ability to do that unnecessarily," DeRosa said, adding that leaders "have to be extraordinarily careful about protecting privacy and liberties."

"There is some real value in operating on a solid legal footing," said Suzanne Spaulding, a security consultant. There is "value in trying to work through these issues in a legislative context or at least bringing as much transparency to the policy discussion as we can."

Spaulding agreed that FISA "needs to be updated" but maintained that it is an important tool to help Congress and the judicial branch check the president's power.

John Yoo, a law professor at the University of California at Berkeley who has worked with the administration in developing a legal foundation for the surveillance program, pointed out that past presidents have also used surveillance without strict oversight.

"President Franklin Roosevelt ordered national security surveillance and he did it much more broadly than President Bush has," Yoo said of Roosevelt's surveillance efforts prior to the United States' involvement in World War II.

He said that "signs of congressional support are important and welcome" but that "Congress has already authorized the president to use force," including secret wiretapping.

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