The Anti-Antiterror Lobby

A scary Wall Street Journal editorial on how Mumbai can happen here:

India’s three days of carnage stand as another warning about how easily terrorists can perpetrate a major attack. So when top New York City counterterrorism officials declare that U.S. intelligence laws are shackling their powers to prevent the next Mumbai, it ought to raise more than eyebrows.

Instead, almost nobody seems to care. Seven years without an attack on the U.S. mainland has created a growing public complacency. And the anti-antiterror lobby has exploited that complacency to assail and constrain critical Bush Administration intelligence programs, making it harder to intercept terrorists before they strike. As a consequence innocent Americans may be killed.

That’s the reality exposed in an extraordinary exchange of letters between NYC Police Commissioner Raymond Kelly and U.S. Attorney General Michael Mukasey. The city and the Justice Department are feuding over the Foreign Intelligence Surveillance Act, or FISA, the 1978 domestic wiretapping law that was amended this year and requires a warrant to listen in on suspected foreign terrorists. Mr. Kelly says that Justice’s FISA policies are “unduly constraining” his high-priority “international terrorism investigations in the greater New York area.”

Two city applications for electronic surveillance, one in June and the other in September, got quashed — not by the FISA court, but by Justice’s own legal team. As a municipal outfit, the police intelligence division cannot appeal directly to the special FISA panel of rotating judges but must instead work through DOJ. Both cases are classified.

Mr. Kelly was furious and let Mr. Mukasey know it in a searing critique. Someone leaked the October correspondence late last month, and though each party blames the other, both have since walked back from public conflict. In any event, whoever leaked made his point. Mr. Kelly’s letter exposed a “lack of urgency and excessive time lags” in processing FISA applications; as well as a bureaucracy that insists on “frequently long and unjustifiable delay,” even “weeks of delay.” This is disturbing enough given fast-moving terror plots.

But Mr. Kelly’s main criticism — “an unnecessarily protracted, risk-averse process that is dominated by lawyers, not investigators and intelligence collectors” — is far more troubling. He believes that Justice is applying “inappropriately high standards of probable cause” that stop “close cases,” which “involve considerable uncertainty,” from ever going before a FISA judge.

Justice, in other words, is not erring on the side of averting catastrophe but on the side of political self-protection from judicial second-guessing. “The real question,” Mr. Kelly writes, “is how many applications did DOJ not submit to the Court . . . In a proactive, intelligence-driven domestic counterterrorism enterprise, such omissions should be unacceptable.” He concludes that “the federal government is doing less than it is lawfully entitled to do to protect New York City, and the City is less safe as a result.”

Mr. Mukasey was just as pointed. “We are acutely aware of the stakes,” he replied, saying Mr. Kelly’s call for a relaxed reading of FISA was “to be kind, impractical” and likewise accused him of putting the public at risk. “Were the Court to be presented with a significant number of legally insufficient applications, the government’s credibility would be substantially undermined,” he wrote.

“If we were to adopt the NYPD approach and routinely submit cases lacking probable cause,” Mr. Mukasey continued, “the Court would rightly doubt our credibility and our judgment. . . . The less the FISA Court comes to trust the validity of the applications, the more inclined the judges will be to impose on all applications the kind of scrutiny that doubtful applications merit.” A higher standard for warrants inevitably means fewer warrants, which in turn means less intelligence.

Mr. Mukasey is not soft on terrorism, and no doubt his may-it-please-the-court stance is pragmatic. The real problem is FISA itself. The Attorney General is only allowed to pursue threats up to certain legalistic edges, which contracted under this year’s political compromise that greatly expanded the role of the courts in intelligence gathering. Commissioner Kelly is practically begging people to think about what this means in the real world.

FISA was passed before the advent of disposable cell phones, encrypted emails and high-speed fiber optic networks. Now we live in a world where terrorist communications that originate in, say, Peshawar happen to move through U.S. switching networks. The executive branch already possesses the Constitutional authority to monitor such communications, but Democrats and the political left claimed it was “illegal” under FISA.

Then the anti-antiterror bar filed multibillion-dollar lawsuits against the telecom companies whose good-faith assistance after 9/11 made such surveillance possible. The goal was to shut down the program, and the telcos made it clear they couldn’t cooperate without Congress’s blessing. Forced to choose between a Democratic deal that gave the companies legal immunity or giving up a key U.S. antiterror tool, President Bush chose the former. The price — the one Commissioner Kelly is paying — was narrowing the government’s antiterror wiretapping powers.

What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is. Meanwhile, the very Members of Congress who insisted on FISA’s limitations will blame the executive branch that they put under the supervision of those anonymous judges…

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