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If al Qaeda is calling someone in the United States, the government should be listening. I would have thought that FISA provided all the authority needed to listen to such calls. If the administration believed that the FISA rules were not sufficient it should have come to Congress and asked for an amendment to FISA. Now, if the administration makes the case in public that, following 9/11, greater flexibility is needed to listen in a timely way to such calls, Congress should be prepared to amend FISA as necessary and consistent with the Fourth Amendment-after it is fully briefed on any such need. I will describe below the possible elements of such legislation based on ideas that I understand have been discussed in various congressional offices.
I want to emphasize what I believe to be a fundamental point: Congress cannot legislate in the dark. Before Congress considers further legislation, it must conduct a full and complete investigation of the full range of current activities being carried on outside of the procedures prescribed by FISA. It should also insist that the administration provide a public explanation of what additional authority it believes it needs, with additional detail provided in closed hearings. And Congress should require that, as a condition for granting the additional authority, all surveillance be conducted pursuant to the standards of FISA.
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