January 30, 2006

THE WALL IS A FACADE (via Gene Brown):

Our Right to Security: Al Qaeda, not the FBI, is the greater threat to America (DEBRA BURLINGAME, January 30, 2006, Opinion Journal)

Critics contend that the Patriot Act was rushed into law in a moment of panic. The truth is, the policies and guidelines it corrected had a long, troubled history and everybody who had to deal with them knew it. The "wall" was a tortuous set of rules promulgated by Justice Department lawyers in 1995 and imagined into law by the Foreign Intelligence Surveillance Act (FISA) court. Conceived as an added protection for civil liberties provisions already built into the statute, it was the wall and its real-world ramifications that hardened the failure-to-share culture between agencies, allowing early information about 9/11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi to fall through the cracks. More perversely, even after the significance of these terrorists and their presence in the country was known by the FBI's intelligence division, the wall prevented it from talking to its own criminal division in order to hunt them down.

Furthermore, it was the impenetrable FISA guidelines and fear of provoking the FISA court's wrath if they were transgressed that discouraged risk-averse FBI supervisors from applying for a FISA search warrant in the Zacarias Moussaoui case. The search, finally conducted on the afternoon of 9/11, produced names and phone numbers of people in the thick of the 9/11 plot, so many fertile clues that investigators believe that at least one airplane, if not all four, could have been saved.

In 2002, FISA's appellate level Court of Review examined the entire statutory scheme for issuing warrants in national security investigations and declared the "wall" a nonsensical piece of legal overkill, based neither on express statutory language nor reasonable interpretation of the FISA statute. The lower court's attempt to micromanage the execution of national security warrants was deemed an assertion of authority which neither Congress or the Constitution granted it. In other words, those lawyers and judges who created, implemented and so assiduously enforced the FISA guidelines were wrong and the American people paid dearly for it.

Despite this history, some members of Congress contend that this process-heavy court is agile enough to rule on quickly needed National Security Agency (NSA) electronic surveillance warrants. This is a dubious claim. Getting a FISA warrant requires a multistep review involving several lawyers at different offices within the Department of Justice. It can take days, weeks, even months if there is a legal dispute between the principals. "Emergency" 72-hour intercepts require sign-offs by NSA lawyers and pre-approval by the attorney general before surveillance can be initiated. Clearly, this is not conducive to what Gen. Michael Hayden, principal deputy director of national intelligence, calls "hot pursuit" of al Qaeda conversations.

The Senate will soon convene hearings on renewal of the Patriot Act and the NSA terrorist surveillance program. A minority of senators want to gamble with American lives and "fix" national security laws, which they can't show are broken. They seek to eliminate or weaken anti-terrorism measures which take into account that the Cold War and its slow-moving, analog world of landlines and stationary targets is gone. The threat we face today is a completely new paradigm of global terrorist networks operating in a high-velocity digital age using the Web and fiber-optic technology. After four-and-a-half years without another terrorist attack, these senators think we're safe enough to cave in to the same civil liberties lobby that supported that deadly FISA wall in the first place. What if they, like those lawyers and judges, are simply wrong?

Meanwhile, the media, mouthing phrases like "Article II authority," "separation of powers" and "right to privacy," are presenting the issues as if politics have nothing to do with what is driving the subject matter and its coverage. They want us to forget four years of relentless "connect-the-dots" reporting about the missed chances that "could have prevented 9/11." They have discounted the relevance of references to the two 9/11 hijackers who lived in San Diego. But not too long ago, the media itself reported that phone records revealed that five or six of the hijackers made extensive calls overseas.

Neither Congress nor the Executive can constitutionally grant the courts oversight of national security matters, anymore than they could grant the Executive a line item veto.

Posted by Orrin Judd at January 30, 2006 12:56 PM

"[...]The public has listened to years of stinging revelations detailing how the government tied its own hands in stopping the devastating attacks of September 11. It is an irresponsible violation of the public trust for members of Congress to weaken the Patriot Act or jeopardize the NSA terrorist surveillance program because of the same illusory theories that cost us so dearly before, or worse, for rank partisan advantage. If they do, and our country sustains yet another catastrophic attack that these antiterrorism tools could have prevented, the phrase "connect the dots" will resonate again--but this time it will refer to the trail of innocent American blood which leads directly to the Senate floor."

To the above I say ... Amen.

And it should be noted:
"Ms. Burlingame, a former attorney, is the sister of Charles F. "Chic" Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001."

Posted by: Genecis at January 30, 2006 2:54 PM

1)Doesn't the Supreme Court ultimately decide whether the criteria of "national security" is really the issue in 4th amendment cases, by that I mean the factual issue of whether national security is involved?

2) All of the above is irrelevant in the case of impeachment, which would mean that Congress will decide the scope of surveilance and whether it is to be "granted to the court" (the president or I should say ex-president has no say in the matter)

3) Lastly, which stinker in the office of the President actually signed the pertinent legislation giving the illusion of actual law?

Posted by: h-man at January 30, 2006 4:02 PM


It's not adjudicable, whether the Court wants to reach it or not. The Constitution determined that.

Posted by: oj at January 30, 2006 4:15 PM

You're saying that J. Edgar in pumps and high heels salivating over private communications for titillating information merely has to claim "national security" and the Supreme Court must accept it. If you are not saying that, then you agree with we that the Supreme Court and not the President will decide the issue.

Conflicts or restrictions placed on the Executive by the 4th amendment are adjudicable by the Federal Courts. The court can carve out exceptions and limit the applicablity of the 4th amendment to National Security issues, but I fail to see how they abandon their duty under the constitution.

Posted by: h-man at January 30, 2006 5:00 PM

Yes, I'm saying that as a co-equal branch of government and the only one given responsibility for prosecuting wars that if the Court tried taking a case the President could simply refuse to appear or follow any ruling.

Posted by: oj at January 30, 2006 5:08 PM


Jimmy Carter signed FISA into law. This is another reason why executive signing statements, referenced in a following post, are valuable. The signing statement allows the President to say he will operate under this law most of the time, but his signing does not represent a waiver (which would be constitutionally impossible, anyway) of his executive powers. The current 'President broke the law' argument assumes that Carter's signing FISA perpetually bound succeeding presidents.


I'd love to see an Andrew Jackson moment on this issue: "John Marshall has made his decision; now let him enforce it!" Though perhaps the quote is apocryphal, it is a nice sentiment.

Posted by: Fred Jacobsen (San Fran) at January 30, 2006 7:18 PM