[Clips] Why Bush Approved the Wiretaps

Tue Dec 20 08:59:12 PST 2005

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 <http://www.nationalreview.com/script/printpage.p?ref=/york/york200512191334.asp>

 The National Review
 Byron York

 December 19, 2005, 1:34 p.m.
 Why Bush Approved the Wiretaps
 Not long ago, both parties agreed the FISA court was a problem.

 In the days since the revelation that President Bush authorized the
 National Security Agency to bypass, in certain cases of suspected al Qaeda
 activity, the special court set up to provide warrants for
 national-security wiretaps, the question has come up repeatedly: Why did he
 do it?

 At his news conference this morning, the president explained that he
 believed the U.S. government had to "be able to act fast" to intercept the
 "international communications of people with known links to al Qaeda." "Al
 Qaeda was not a conventional enemy," Bush said. "This new threat required
 us to think and act differently."

 But there's more to the story than that. In 2002, when the president made
 his decision, there was widespread, bipartisan frustration with the
 slowness and inefficiency of the bureaucracy involved in seeking warrants
 from the special intelligence court, known as the FISA court. Even later,
 after the provisions of the Patriot Act had had time to take effect, there
 were still problems with the FISA court - problems examined by members of
 the September 11 Commission - and questions about whether the court can
 deal effectively with the fastest-changing cases in the war on terror.

 People familiar with the process say the problem is not so much with the
 court itself as with the process required to bring a case before the court.
 "It takes days, sometimes weeks, to get the application for FISA together,"
 says one source. "It's not so much that the court doesn't grant them
 quickly, it's that it takes a long time to get to the court. Even after the
 Patriot Act, it's still a very cumbersome process. It is not built for
 speed, it is not built to be efficient. It is built with an eye to keeping
 [investigators] in check." And even though the attorney general has the
 authority in some cases to undertake surveillance immediately, and then
 seek an emergency warrant, that process is just as cumbersome as the normal
 way of doing things.

 Lawmakers of both parties recognized the problem in the months after the
 September 11 terrorist attacks. They pointed to the case of Coleen Rowley,
 the FBI agent who ran up against a number roadblocks in her effort to
 secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda
 operative who had taken flight training in preparation for the hijackings.
 Investigators wanted to study the contents of Moussaoui's laptop computer,
 but the FBI bureaucracy involved in applying for a FISA warrant was
 stifling, and there were real questions about whether investigators could
 meet the FISA court's probable-cause standard for granting a warrant. FBI
 agents became so frustrated that they considered flying Moussaoui to
 France, where his computer could be examined. But then the attacks came,
 and it was too late.

 Rowley wrote up her concerns in a famous 13-page memo to FBI Director
 Robert Mueller, and then elaborated on them in testimony to Congress.
 "Rowley depicted the legal mechanism for security warrants under the
 Foreign Intelligence Surveillance Act, or FISA, as burdensome and
 restrictive, a virtual roadblock to effective law enforcement," Legal Times
 reported in September 2002.

 The Patriot Act included some provisions, supported by lawmakers of both
 parties, to make securing such warrants easier. But it did not fix the
 problem. In April 2004, when members of the September 11 Commission briefed
 the press on some of their preliminary findings, they reported that
 significant problems remained.

 "Many agents in the field told us that although there is now less hesitancy
 in seeking approval for electronic surveillance under the Foreign
 Intelligence Surveillance Act, or FISA, the application process nonetheless
 continues to be long and slow," the commission said. "Requests for such
 approvals are overwhelming the ability of the system to process them and to
 conduct the surveillance. The Department of Justice and FBI are attempting
 to address bottlenecks in the process."

 It was in the context of such bureaucratic bottlenecks that the president
 first authorized, and then renewed, the program to bypass the FISA court in
 cases of international communications of people with known al Qaeda links.

 There were other reasons for the president to act, as well. In short, it
 appears that he was trying to shake the bureaucracy into action. The
 September 11 Commission report pointed to a deeply entrenched
 it's-not-my-job mentality within the National Security Agency that led the
 organization to shy away from aggressive antiterrorism surveillance. "The
 law requires the NSA to not deliberately collect data on U.S. citizens or
 on persons in the United States without a warrant based on foreign
 intelligence requirements," the 9/11 commission report wrote,
 While the NSA had the technical capability to report on communications with
 suspected terrorist facilities in the Middle East, the NSA did not seek
 FISA Court warrants to collect communications between individuals in the
 United States and foreign countries, because it believed that this was an
 FBI role. It also did not want to be viewed as targeting persons in the
 United States and possibly violating laws that governed NSA's collection of
 foreign intelligence. An almost obsessive protection of sources and methods
 by the NSA, and its focus on foreign intelligence, and its avoidance of
 anything domestic would...be important elements in the story of 9/11.

 Bush's order, it appears, was an attempt to change that situation.
 Especially before, and even after, passage of the Patriot Act, the FISA
 bureaucracy and the agencies that dealt with it were too unwieldy to handle
 some fast-moving intelligence cases. And now, a group of 43 Democrats and
 four Republicans is trying to undo even those improvements brought by the
 Patriot Act; after the effort to renew the law was filibustered last week,
 Senate Minority Leader Harry Reid exulted, "We killed the Patriot Act." Put
 all those factors together, and they explain the president's impassioned
 argument that he has to act to keep the pressure on al Qaeda - especially
 at a time when others, for whatever reasons, are trying to stop him.

  - Byron York, NR's White House correspondent, is the author of The Vast
 Left Wing Conspiracy: The Untold Story of How Democratic Operatives,
 Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried
 to Bring Down a President - and Why They'll Try Even Harder Next Time.

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 R. A. Hettinga <mailto: rah at ibuc.com>
 The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
 44 Farquhar Street, Boston, MA 02131 USA
 "... however it may deserve respect for its usefulness and antiquity,
 [predicting the end of the world] has not been found agreeable to
 experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'