January 19, 2006
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
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
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.
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
Ms. Toensing, a Washington
lawyer, was chief counsel for the Senate Intelligence Committee and deputy
assistant attorney general in the Reagan administration.