In the recent House vote to codify in law the necessary changes between homeland security and overseas intelligence operations, we have to wonder why 187 Democrats, a massive majority of their ranks, opposed the updates to the FISA laws – especially in light of what these updates accomplished:

The truth, however, is that the amendments mostly return to FISA’s original intent, to set requirements for judicial review of domestic wiretaps while allowing the interception of foreign communications without a warrant or other judicial order.

Some FISA fix was necessary. As has been widely reported, the Bush administration brought the National Security Agency’s Terrorist Surveillance Program under FISA’s framework earlier this year. Before that, the TSP — under which electronic communications into and out of the United States could be intercepted without a court order — operated on the basis of the president’s constitutional authority, buttressed by Congress’ authorization to use force, to spy on Al Qaeda and its agents around the world.

In the last few weeks, however, actions by the FISA court — requiring the NSA to obtain court orders before intercepting purely foreign communications that simply pass through switches physically located in the United States — have dramatically reduced the NSA’s intelligence “take.” As a result, the government was not getting much of the information it needed to “connect the dots” and frustrate future terrorist attacks.

Congress never intended to subject surveillance of foreign communications to court review. When FISA was passed in 1978, overseas communications were usually intercepted abroad. They were not subject to FISA’s warrant requirements, and they are not subject to the probable cause and warrant requirements of the 4th Amendment.

Ideological mavericks in our courts and from the Clinton administration have been attempting to destroy our defensive intel capabilities in a blind, partisan push to do nothing more than taint our President. No American believes a lead to a US element that is picked up by the NSA monitoring terrorists overseas should be destroyed in a fit of over-kill caution against some mythical potential future abuse of our nation’s intelligence apparatus. The reality is when we monitor targets, we sweep up all their communications and sift through them to determine other dangerous players:

It’s true that the foreign targets’ U.S. correspondents may be overheard in the surveillance process, just as innocent people are overheard in conversations with court-ordered surveillance targets. No one can reasonably expect that they would not be unintentionally overheard in the course of a lawful surveillance of others. A “reasonable expectation of privacy” is the key here.

Our privacy is compromised daily by government and nongovernment actors. This is the price of living in a modern society. The real question is how to strike the balance between permissible and impermissible invasions of privacy, and what expectations may be reasonable. Americans may, for example, be subject to physical search without a warrant or judicial oversight whenever they leave or enter the United States. The same should apply to electronic communications coming into or going out of the United States; they should not be subject to a more stringent rule.

I have been saying since this story broke that the NY Times had it 180 degrees wrong. The change post 9-11 was not to bypass FISA but to force FISA to accept leads from intel as valid sources of concern when looking at probable cause for terrorist activities. Prior to 9-11 that was not the case. We want leads to US elements of al-Qaeda identified, investigated and neutralized if the discovery turns out to be another effort to kill Americans. The process set up in the new law does just that. Prior to 9-11 intel that led to the US was THROWN AWAY. The content was kept, but all leads to the person or persons in America connected to the plot were destroyed – making intervention impossible. Now we know better. We are not so naive to think a message from a terrorist in Yemen can be handled so carelessly. And yet, 187 Democrats voted to do this very thing.

Next year there is a way for the GOP to take back Congress. It is not going to be by going way over the top on illegal immigration. It will be by holding those 187 Congressional Democrats who voted to ignore terrorist leads accountable for their votes. That is a lot of seats that could be put in play.