REVIEW & OUTLOOK
Wiretap Debacle
How politics has gutted the terrorist surveillance program.
The U.S. homeland hasn't been struck by terrorists since September 11, and one reason may be more aggressive intelligence policies. So Americans should be alarmed that one of the best intelligence tools--warrantless wiretapping of al Qaeda suspects--has recently become far less effective and is in danger of being neutered by Congressional Democrats.
President Bush approved this terrorist surveillance not long after 9/11, allowing intelligence officials to track terrorist calls overseas, as well as overseas communications with al Qaeda sympathizers operating in the U.S. The New York Times exposed the program in late 2005, and Democrats and antiwar activists immediately denounced it as an "illegal" attempt to spy on Americans, à la J. Edgar Hoover.
Democratic leaders were briefed on the program from the first and never once tried to shut it down. But once it was exposed, these same Democrats accused Mr. Bush of breaking the law by not getting warrants from the special court created under the Foreign Intelligence Surveillance Act (FISA) of 1978. Mr. Bush has rightly defended the program's legality, but as a gesture of compromise in January he agreed to seek warrants under the FISA process.
This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror. To understand why, keep in mind that we live in a world of fiber optics and packet-switching. A wiretap today doesn't mean the FBI must install a bug on Abdul Terrorist's phone in Peshawar. Information now follows the path of least resistance, wherever that may lead. And because the U.S. has among the world's most efficient networks, hundreds of millions of foreign calls are routed through the U.S.
That's right: If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists. If this makes you furious, it gets worse.
Our understanding is that some FISA judges have been open to expediting warrants, as well as granting retroactive approval. But there are 11 judges in the FISA rotation, and some of them have been demanding that intelligence officials get permission in advance for wiretaps. This means missed opportunities and less effective intelligence. And it shows once again why the decisions of unaccountable judges shouldn't be allowed to supplant those of an elected Commander in Chief.
When the program began, certain U.S. telecom companies also cooperated with the National Security Agency. But they were sued once the program was exposed, and so some have ceased cooperating for fear of damaging liability claims. We found all of this hard to believe when we first heard it, but we've since confirmed the details with other high-level sources.
Director of National Intelligence Michael McConnell more or less admitted the problem last week, albeit obliquely, when he told the Senate that "we're actually missing a significant portion of what we should be getting." That's understating things. Our sources say the surveillance program is now at most one-third as effective as it once was.
The Bush Administration bears much of the blame for this debacle. White House officials hoped that by agreeing to put the wiretaps under FISA authority, they could lower the political temperature and reach an accommodation with Congress. But no Administration has ever conceded that FISA trumps a President's Constitutional power to place wiretaps in the name of national security. The courts have also explicitly upheld this Presidential power. Mr. Bush was making a needless concession that Democrats have used against him as they refuse to compromise.
The Administration wants Congress to modernize FISA in two crucial ways: First, by allowing NSA to track on a real-time basis these foreign calls that may be routed through the U.S., and in some cases allowing warrants to be sought after the fact. Our spooks would still be accountable, but they'd also be able to act quickly to defend the country. Second, the White House is requesting liability protection for telecom companies that cooperate with the wiretap program. Neither of these changes should be at all controversial--and we're confident they'd have overwhelming public support if the issues were understood.
Yet for six months Senate Democrats have resisted these legal changes to make Americans safer. Incredibly, they are fronting for their trial lawyer campaign donors in blocking liability protection. Their counteroffer is to have the federal government supplant the companies as the defendants in any wiretapping lawsuits, as if any such lawsuits were justified. Why are Democrats letting trial lawyers interfere with a vital intelligence operation?
Meanwhile, Senate Judiciary Chairman Patrick Leahy is holding any wiretap legislation hostage to his demand for Administration documents related to the program. This is part of the Democrats' political exercise to claim that Mr. Bush has somehow broken the law by allowing the wiretaps. Backed by grandstanding Republican Arlen Specter, in short, Mr. Leahy is more interested in fighting over how the program began than in allowing it to continue today.
At least a few Democrats realize they may be setting themselves up for trouble if there's another terrorist attack. House Intelligence Chairman Silvestre Reyes wrote to Mr. Bush last week saying he was "very concerned" about the program and urging the Administration to "devote all the resources necessary to ensure that we are conducting maximum surveillance of the terrorist target abroad."
Mr. Reyes went on to note that "FISA does not require a warrant for communications between two individuals outside the United States. If clarifications to the law are necessary, we are prepared to deal with this." That'll serve Mr. Reyes well as political cover if the next 9/11 Commission asks who ruined the terrorist surveillance program. But if he's serious about national security, he should send his next letter to Senate Democrats.
Six months is too long for Mr. Bush to cater to Pat Leahy while Americans are put at risk. The President should announce immediately that he is rescinding his concession to put these foreign wiretaps under the FISA court. He should say he is doing so as an urgent matter of national security as Commander in Chief because Congress has refused to respond in good faith by modernizing the law to let the U.S. eavesdrop on terrorists who wish us deadly harm. Then let Democrats explain why they're willing to put partisanship above the safety of America.
