FISA Court Is Irrelevant in GWOT Intelligence Gathering
By Doug Edelman (12/29/05)
Much noise is being made about the recent revelations that the Bush Administration did some intelligence gathering on persons in the US, who had ties to terrorists, without seeking warrants from the FISA Court. But one must filter out the cacophonous din and deconstruct the issue to arrive at a true understanding.
The first filter: The partisan prime directive of the dems to bring down the Bush Administration at all costs. They're going to milk anything which has even a hint of scandal for all it's worth to the detriment of the Administration. Expect this. Filter out the party line talking points issued for political advantage.
The second filter: Applying standards of criminal justice to wartime intelligence gathering. The FISA court was created in a time when surveillances of the type in question were done to obtain evidence to be used in criminal prosecutions against those suspected of espionage or other federal crimes. As such, the criterion of "probable cause" was needed to obtain a warrant for such surveillance. The FISA Court was never conceived as a vehicle to approve or deny wartime intelligence gathering for the purpose of intervention to prevent terrorist acts against American interests. Therefore we must draw a line of distinction between criminal evidence gathering and wartime intelligence gathering for the National Defense.
The gathering of intelligence from a wartime enemy has always been and should always be a matter of National Security/Military authority - not of the judicial system. As such it falls under the constitutional jurisdiction and authority of the Commander in Chief. The President was acting under this authority. One must bear in mind that powers and authorities given the President by the Constitution cannot be rescinded, diminished or modified by legislative statute. Congress cannot take power from the President which is granted him by the Constitution. As such, it is not the President who has exceeded his authority. it is Congress that is trying to exceed theirs by attempting to limit the President's lawful authority.
The third filter: Technology. When we speak today of "electronic surveillance" - we are no longer talking about "wiretapping" in the classic sense of clipping an alligator clipped wire onto someone's phone line and listening in via a handset to someone's conversation. Today's digital communications are transmitted over microwave, satellite and the Internet Backbone as IP packets. All along they way, they are being directed from source to destination by routers and through gateways. Under the Clinton Administration, a "listening" program known as "Echelon" was set up to broadly scan Internet (and I've heard but cannot verify - cell phone) traffic for certain keywords which would raise red flags to be followed up on. No live person ever sat listening in on these conversations or reading this internet traffic. But a log was created of these red flags, when encountered. This technology, while far more intrusive on the public - as it broadly scans all traffic across the medium - raised not even a whimper from the "civil libertarians" than the current debate over the highly targeted and minimally used surveillance of certain individuals thought to represent a threat to the safety and security of our citizens!
A hypothetical scenario was recently proffered by a former justice department official on a recent radio program: Suppose a conversation was intercepted between Osama Bin Laden and some associate in Yemen. This associate then makes a call to an Islamic student in Los Angeles. Would it NOT be prudent to know what that call was about? Yet because such surveillance would not meet standards of probable cause in a criminal investigation of the Los Angeles student. no warrant would be likely. Now let's suppose this hypothetical chain of phone calls was the authorization from Bin Laden to awaken a sleeper cell and initiate a terrorist act in L.A. Would you really want "probable cause" to stand in the way of obtaining that OBTAINABLE intelligence?
The Straw Man: The leftist "civil libertarians" will cry out that OUR liberties and privacy rights are being eroded. Let's remember, however, that this surveillance is not being directed to find out what your wife is asking you to pick up on your way home from work. While the legal definition of "probable cause" is not the standard in these cases - reasonable suspicion and expectation of intelligence of value IS needed to commit the resources necessary to implement such surveillance.
The President fervently believes his primary duty is the protection of the American People - and he's right, for so it is. He was castigated unfairly after September 11th for FAILURE to prevent the attack. Failure to have the intelligence. Failure to "connect the dots". Yet now that we are aware that he is utilizing the power that is constitutionally his to fortify our defenses against another attack - which we universally understand to be not a matter of IF but a matter of WHEN and WHERE - he is again being maligned for doing so.
History will ultimately show that the President not only was within his authority to order these surveillances, but that they were fruitful in protecting our people. Sadly, history will probably also show that the leak of this information eroded our protection and contributed to the next attack.
Copyright © 2005 by Doug Edelman
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