http://www.opinionjournal.com/editorial/feature.html?id=110007848Terrorists on Tap
Do Al Gore and other Democrats really want to keep the government from finding al Qaeda agents in the U.S.?
BY VICTORIA TOENSING
Sunday, January 22, 2006 12:01 a.m. EST
In a speech last week, 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 overstrict 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 (more...)