Tapping The Terrorists

Victoria Toensing has a must read article in the WSJ. Reprinted in it’s entirety here:

Terrorists on Tap
By VICTORIA TOENSING
January 19, 2006; Page A14

In a speech this week, former vice president Al Gore took another swing at the National Security Agency’s electronic surveillance program, which monitors international communications when one party is affiliated with terrorists. Specifically, Mr. Gore argued that George Bush “has been breaking the law repeatedly and persistently,” and that such actions might constitute an impeachable offense. The question he raises is whether the president illegally bypassed the Foreign Intelligence Surveillance Act (FISA). But the real issue is national security: FISA is as adept at detecting — and, thus, preventing — a terrorist attack as a horse-and-buggy is at getting us from New York to Paris.

I have extensive experience with the consequences of government bungling due to over-strict interpretations of FISA. As chief counsel for the Senate Intelligence Committee from 1981 to 1984, I participated in oversight of FISA in the first years after its passage. When I subsequently became deputy assistant attorney general in the Reagan administration, one of my responsibilities was the terrorism portfolio, which included working with FISA.

In 1985, I experienced the pain of terminating a FISA wiretap when to do so defied common sense and thwarted the possibility of gaining information about American hostages. During the TWA 847 hijacking, American serviceman Robert Stethem was murdered and the remaining American male passengers taken hostage. We had a previously placed tap in the U.S. and thought there was a possibility we could learn the hostages’ location. But Justice Department career lawyers told me that the FISA statute defined its “primary purpose” as foreign intelligence gathering. Because crimes were taking place, the FBI had to shut down the wire.

FISA’s “primary purpose” became the basis for the “wall” in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement. The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as “puzzling.” The court cited an FBI agent’s testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation.

Today, FISA remains ill-equipped to deal with ever-changing terrorist threats. It was never envisioned to be a speedy collector of information to prevent an imminent attack on our soil. And the reasons the president might decide to bypass FISA courts are readily understandable, as it is easy to conjure up scenarios like the TWA hijacking, where strict adherence to FISA would jeopardize American lives.

The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.

The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?

If we had used this ability before 9/11, as the vice president has noted, we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed AA Flight 77 into the Pentagon.

And to correct an oft-cited misconception, there are no five-minute “emergency” taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B’s number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?

Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, “Congress will make it a political issue and we may come away with less ability to monitor.” The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern.

It took 9/11 for Congress to pass the amendment breaking down the “wall,” which had been on the Justice Department’s wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation.

There are other valid reasons for the president not to ask Congress for a legislative fix. To have public debate informs terrorists how we monitor them, harming our intelligence-gathering to an even greater extent than the New York Times revelation about the NSA program. Asking Congress for legislation would also weaken the legal argument, cited by every administration since 1978, that the president has constitutional authority beyond FISA to conduct warrantless wiretaps to acquire foreign intelligence information.

The courts may ultimately decide the legality of the NSA program. Meanwhile, the public should decide whether it wants NSA to monitor terrorists, or wait while congressional critics and Al Gore fiddle.

She makes some very important points here. The left has been saying that there is a emergency provision inside FISA, so why didn’t they use it. Victoria lays out the reasons and hits the nail right on the head. I have written search warrants myself and understand completely the time and effort it takes to gather all the Intel, get all the documents together, find the judge and get it signed. Its not an easy task at the state level, I can’t imagine the hoops they would have to jump through to get a Federal one.

Even in an emergency situation, say for example where someone is barricaded inside a house with a hostage it normally would take 1-2 hours, and that is moving very very fast if all the info fell into place.

But even in the state level we have exceptions to a search warrant, the main one being emergency situations. Say an armed suspect just robbed a store and then runs into a house with you right behind him. Do you now have to stop and get a warrant to enter the house? Of course not.

Why do I bring this up? To show that even at the local level there will always be exceptions to the rule. As Victoria laid out so well it is not feasible to ask that we HAVE to get a warrant for a call that is taking place in minutes, when even in emergency situations it could take hours to get the documents together and have the AG look them over. It is just common sense (something we all know the lefties lack).

This is why the majority of Americans understands and agree with the President. If there is someone amongst us communicating with Al-Qaeda we NEED to know.

Victoria was on the Laura Ingraham show this morning. I have the audio here and the transcript below where she lays it even better:

LAURA – Did you hear Al Gore’s slam against President Bush earlier this week?

VICTORIA – I couldn’t dare, I had to read the transcript. Because there was just so much, you know five minutes and I couldn’t stand it but I enjoyed listening to it on your show. I love your (gobbling sound) take on it, but I just couldn’t take it.

L – The many voices of Al Gore well he just came out and flat just said this is against the law; the President has violated the law. The President has committed essentially a felony.

V – Did he cite any controlling legal authority?

L – It depends what the meaning of the words legal authority are.

V – Yeah, you remember that from Al Gore, “there was no controlling legal authority”?

L – Yeah, exactly, well no he didn’t but tell us, give us the history here of what the FISA court was supposed to be doing and why it’s slowed down the process of collecting valuable intelligence especially today when we need it so badly.

V – Good question Laura, back in the early 70’s when Richard Nixon was in office and he wiretapped various domestic groups because he said they were against the war and in Vietnam because he needed to know because he was fighting a war in Vietnam and he did it like Tallahassee to Topeka so it was all internal, in the United States.

A certain case came to court in Detroit and Judge Damon Keith because it’s basically called the Keith case said, and the Supreme Court agreed with him, no you can’t do that entirely in the United States, that’s called domestic spying. That’s why I get very upset at any TV or host or anyone who say’s “lets talk about domestic spying”, I say well you already decided the issue then because this is not domestic spying. One party is outside the country or has a cell phone listed outside the country talking to somebody inside the country. So it’s a international phone call. It’s not domestic.

The Supreme Court has never ruled on what the situation is regarding somebody outside of the country and talking to somebody inside the country when there is a war, in a wartime situation. Because of that, way back in the mid-70’s and then finally FISA was passed in 1978, the conservatives wanted a strong executive and were afraid the Supreme Court was going to rule against them although they always argued that we, the President has the authority to do this, inherent constitutional authority, in this kind of a situation.

The liberals who always argued no he doesn’t, he can’t tap anything without a warrant we’re afraid the Supreme Court was going to rule against them so fo course that breeds a statute doesn’t it? Because they come together and say ok, this is how we’re gonna do it, this is how we’re gonna get information about foreign intelligence, this is how we’re gonna tap, we’re gonna tap when we’re doing it within the United States or if we’re doing it outside the United States no warrant is required.

That was 1978 when no one had ever heard of a laptop, a cell phone, fiber optics, all the ways terrorists communicate today. FISA never addressed because nobody then had any concept of it. So, as I say in my article, FISA is as adept at preventing a future terrorist attack as the horse and buggy is at getting us from New York to Paris. There is just no way.

L – Why don’t we just dump the whole, I mean why do we need this FISA statute anymore? Is there any push in Congress to at least revise it so it’s more up to date with the changing technology that allows these people to communicate instantaneously, where communications happen then disappear in a matter of seconds.

V – Well all I’ve seen is political posturing since it was announced publicly in mid December by the New York Times and certainly for four years the leadership of both parties and the intelligence committee’s knew about this, they didn’t make any move to say why don’t we amend this law, there’s a problem here. Neither side did. Then, of course, the New York Times comes out with it and the Democrats are shocked and appalled to know the listening is going on.

If you don’t mind I want to get to two things that were just driving me crazy I mean the Wall Street Journal called me and said do you want to write something, I said oh yeah, I’ll feel so much better if I do.

An that is, the people who come out, of course none of these people, you know the cable shows put on these people who have never once done a FISA tap or worked with it and most of them aren’t lawyers so I always find that interesting. But the notion that you could get a emergency “oh well there’s a provision for a emergency so you can just do that” well the emergency still has to have the approval of the Attorney General. Now as I say in my article, he is not going to say ok just based on a call from NSA saying hey we need a tap. The AG is going to want something in front of him something in writing that what’s going on. That takes at least several hours, I mean it’s the best, the speediest, that you would have the AG right at your fingertips.

L – That’s not practicable, I mean that is clearly not practicable when it comes to the need to assemble, immediately assemble the information that’s being transmitted from overseas to the United States or from the United States to an overseas terrorist associate or someone who is directly associated with Al-Qaeda, I mean it just seems so obvious. I mean why this is gonna be a subject of hearings at the Judiciary committee on February 6th, it just seems to be one more attempt to make the war on terror just another political debate.

V – That’s exactly what’s happening with this, political debate? Forget that, the Democrats, there are areas of the Democratic party who are calling for impeachment and saying this is a crime i.e. Al Gore.

L – Tell us specifically, when Al Gore came out and gave that speech this week and unhinged doesn’t even begin to describe the way he sounded, but he comes out there and he doesn’t, as far as I can tell, he doesn’t address the Clintons Administrations use of warrantless wiretapping and eavesdropping and endorsement of it.

V – It wasn’t wiretapping, it was entering. They searched Aldridge Ames house.

L – Oh searching.

V – It was, but it was a Fourth Amendment issue and I know your a fine lawyer and you know its the same analysis as Jamie Gorelick, the Deputy AG in the Clinton/Gore Administration said before Congress, hey listening in is the same analysis as breaking in. FISA didn’t cover it and when FISA didn’t cover it and we had inherent constitutional authority to do it, the President has that authority. Well, they were arguing it then I don’t understand the difference today but Gore, I don’t know, maybe that’s the reason Gore isn’t a good lawyer because he didn’t understand that it’s the same analysis.

L – It expectation of privacy versus national security concerns in situations that are absolutely analogues. I mean it doesn’t matter if your eavesdropping or going into someone?s house, if it’s a matter of national security where the information has to be collected immediately and frankly even the American people seem to get this. When the question is written right in these polls the American people seem to have no problem with this and understand there has to be a balance between security and privacy interests.

V – And here is the other canard that these people like Judge Napolitano who has sat in a little state court in New Jersey and has no concept of Federal law whatsoever, constitutional law, I go crazy when I hear him on FOX talking about it.

L – He’s a libertarian on these issues he’s very, he’s a friend of the program, but he’s ah any privacy incursion is a problem with him.

V – Well, he should at least understand the law he says “well I would be awaken at 3 o’clock in the morning and people would come in with a search warrant for me.” Well, how long did he thing it took a person to prepare that search warrant? Because I used to be a Federal prosecutor I know it takes days to accumulate the probable cause just for simple drug case. To show probable cause that somebody is a foreign agent and that he would probably provide foreign intelligence information, that takes a lot of gathering of facts. That isn’t done in 2 minutes.

So the one issue is timing, and there is just no, trust me, there is just no 5 minute warrant ability.

L – Everyone was saying that initially Vicky they were saying “well, this doesn’t take any time and then you have the 72 hour provision where you can take” before we let you go we only have 30 seconds or 45 seconds, the 72 hour provision, people say “well they could always go back they have 72 hours even after they do a warrantless search to go and apply for a warrant.”

V – Yeah, but you still have to have probable cause and a lot of these if your listening to one person and you find that he is talking to person B and then person B is talking to person C and they are all talking alot to each other that doesn’t provide probable cause for person C who may now be in the United States, it just doesn’t rise to that legal level, I’m sure you would agree with me. Just because somebodies phone number he is talking to somebody who is a bad person is not probable cause, but should we be concerned about it? Oh yes, very much so.

L – My view in all of these things is that in a absolute frothy zeal to take down the Bush Administration the Democrats forget and they lose sight of the fact that most of the common sense thinking in this country people understand, as long as your just randomly targeting innocent Americans for eavesdropping inside the United States if someone is talking to someone overseas and they happen to have a connection to a terrorist group or we think you do, a good reason to think we do, then there’s no problem.

V – Let’s hope the House and Senate members get behind it and feel strong enough, this is a fight we should take on.

L – We absolutely should and the Republicans sometimes run away from these types of arguments because they’re afraid of them and there is absolutely no reason to be afraid of them. The President was right here and this aggressive approach to the war on terror is the only thing that is going to keep us safe.

Also, the Justice Department has issued a 42 page report about the program, you can read it here. I haven’t had time to read it but will comment on it once I have.
The Strata-Sphere has a great analysis here about the wiretaps:

One thing the anti-Bush forces just don?t understand is the FISA process has determined Bush has the authority to perform intelligence gathering outside of FISA. It is moronic to argue Bush must follow FISA and then dismiss the FISA Review Court ruling clearly establishing the President has the authority to direct the NSA to monitor our enemies without going through FISA.

Other’s Blogging:

• California Conservative
• Pundit Review
• Protein Wisdom

Why do I bring this up? To show that even at the local level there will always be exceptions to the rule. As Victoria laid out so well it is not feasible to ask that we HAVE to get a warrant for a call that is taking place in minutes, when even in emergency situations it could take hours to get the documents together and have the AG look them over. It is just common sense (something we all know the lefties lack).

Curt

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