Victoria Toensing: Why Bush had to override FISA
[Ms. Toensing, a Washington lawyer, was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.]
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 Paris.
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 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, 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....
Read entire article at WSJ
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 Paris.
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 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, 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....