Sunday, January 22, 2006

Asking the Wrong Question

Al Gore, no doubt with an eye on the 2008 Presidential election, said this last Monday:
A president who breaks the law is a threat to the very structure of our government. Our founding fathers were adamant that they had established a government of laws and not men.

This was in response to the growing furor over the NSA spying "scandal."
In a speech sponsored by two civil liberties groups, the American Constitution Society for Law and Policy and The Liberty Coalition, Gore frequently drew applause and standing ovations at DAR Constitution Hall by denouncing what he saw as abuses of power by the man he narrowly lost the presidency to in 2000.

So what else is new?

Moving beyond partisan matters - it that's possible - valid questions are raised: Did the Bush Administration break the law with the NSA's wiretap program, or was the program an appropriate use of constitutional powers granted to Bush as Commander in Chief?

While those are questions that could be raised, a better one is whether or not the FISA law itself is a help or a hinderance towards keeping us safe in a time of war. Someone who has the cred to speak about that is Victoria Toensing:
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.

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, in which strict adherence to FISA would jeopardize American lives.

As they say, read the whole thing. And then ask yourself if you would feel safer if FISA were rigorously - and bureaucratically - enforced?

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