Democrats undermine security with attacks on surveillance

Opinion Journal:

The U.S. homeland hasn't been struck by terrorists since September 11, and one reason may be more aggressive intelligence policies. So Americans should be alarmed that one of the best intelligence tools--warrantless wiretapping of al Qaeda suspects--has recently become far less effective and is in danger of being neutered by Congressional Democrats.

President Bush approved this terrorist surveillance not long after 9/11, allowing intelligence officials to track terrorist calls overseas, as well as overseas communications with al Qaeda sympathizers operating in the U.S. The New York Times exposed the program in late 2005, and Democrats and antiwar activists immediately denounced it as an "illegal" attempt to spy on Americans, à la J. Edgar Hoover.

Democratic leaders were briefed on the program from the first and never once tried to shut it down. But once it was exposed, these same Democrats accused Mr. Bush of breaking the law by not getting warrants from the special court created under the Foreign Intelligence Surveillance Act (FISA) of 1978. Mr. Bush has rightly defended the program's legality, but as a gesture of compromise in January he agreed to seek warrants under the FISA process.

This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror. To understand why, keep in mind that we live in a world of fiber optics and packet-switching. A wiretap today doesn't mean the FBI must install a bug on Abdul Terrorist's phone in Peshawar. Information now follows the path of least resistance, wherever that may lead. And because the U.S. has among the world's most efficient networks, hundreds of millions of foreign calls are routed through the U.S.

That's right: If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists. If this makes you furious, it gets worse.

Our understanding is that some FISA judges have been open to expediting warrants, as well as granting retroactive approval. But there are 11 judges in the FISA rotation, and some of them have been demanding that intelligence officials get permission in advance for wiretaps. This means missed opportunities and less effective intelligence. And it shows once again why the decisions of unaccountable judges shouldn't be allowed to supplant those of an elected Commander in Chief.

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What this demonstrates is how pernicious the Democrats can be when it comes to national security. FISA should have never been passed to begin with and applying it to intercepts of enemy communications in a time of war is absurd. It is an attempt by the Congress and the courts to interfere with the defense of this country on the bogus assumption that the President in a time of war is interested in the communications of ordinary Americans or even reporters and politicians. All you have to do is listen to Sen. Leahy complain about the program to see the paranoia that invest his thinking. People who are more worried about the President listening in on their calls than the enemies calls in a time of war need to see a psychologist not a FISA judge.