Democrats are crippling our ability to collect intelligence

Opinion Journal:

Imagine this scenario: U.S. intelligence against al Qaeda has declined by two-thirds because of court restrictions, and President Hillary Rodham Clinton is asking Congress to fix the problem. But Senate Republicans refuse to cooperate until the White House turns over executive branch documents, and because they won't protect phone companies from lawsuits for cooperating on the wiretaps.

Do you think President Clinton would be denouncing Congress? Or that there might be a political uproar? Or that the press corps would assail Republicans for endangering national security?

Yet this is precisely what is now happening in Washington--albeit with the political party roles reversed--and almost nobody seems to care. President Bush is mum while his aides beg Congress to do something, and Democrats claim they want to help but keep adding legal roadblocks that would continue to limit U.S. intelligence. The only person showing any alarm is Pete Hoekstra of Michigan, the ranking Republican on the House Intelligence Committee, but he's in the minority and so is ignored by the press.

As we reported last week, Director of National Intelligence Michael McConnell has been working behind the scenes for weeks to restore what even Democrats now concede is declining U.S. ability to eavesdrop on terrorists abroad. The phone companies have limited their cooperation due to the risk of lawsuits following the New York Times exposure of the wiretap program in 2005.

Mr. Bush's January decision to subject these wiretaps to the supervision of the special FISA court has eroded intelligence even further. In many cases, the National Security Agency now needs a warrant to tap even foreign-to-foreign contacts that happen to be routed through U.S. telephone switches. No wonder Osama bin Laden thinks America is a "weak horse." Our politicians are behaving with all the gravitas of Don Adams listening to the phone in his shoe in "Get Smart."

Democrats are the worst actors here because they won't even agree to mere six-month legal fix before they leave town this weekend for their August vacation. The White House has already compromised far too much and is only asking for two main temporary changes: Allow foreign-to-foreign calls to be tapped without a warrant. And if Democrats won't give the phone companies retroactive liability protection, then at least give them prospective immunity so they can cooperate from now on.

But even this is proving to be too much for Democratic leaders, who are apparently worried more about MoveOn.org than they are about another intelligence failure. They say they want to fix the foreign-to-foreign problem. But they're worried that a suspected foreign terrorist might call someone in the U.S., either a citizen or permanent resident, and so they have been insisting that any wiretap on that terrorist's communications require a warrant from the FISA court.

Thus if Ayman al-Zawahiri calls a terror cell in Detroit to give the green light for an operation, the NSA had better get a warrant before it listens in. Warrants for wiretaps on such calls originating overseas have never been required on FISA, for the obvious reason that foreign enemies don't deserve the same due process protections as U.S. citizens. What Democrats are seeking is an entirely new restriction on the executive branch's ability to gather intelligence during wartime.

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This is an invalid concern. It makes no sense what so ever. Consider what happens when the government gets authority to intercept Tony Sopranos's phone calls. It does not need a separate authorization to hear each of the persons he communicates with. If he calls Chuck Shumer about a political problem, the call will be tapped. If there is an agreement on something illicit, it will become evidence.

The Democrat concerns for the privacy of terrorist and people they communicate with is potentially suicidal. It is an absurd concern based on liberal paranoia that demonstrates an irrational concern about the actions of people trying to protect them and an irrational concern for the privacy of those trying to kill them. It is similar to the concerns that caused liberal to build a wall between intelligence activities and law enforcement. People with these kinds of concerns should not be in charge of national security, because they will always put national security second.

What this episode really demonstrates is how flawed the FISA concept is. The FISA courts should have no jurisdiction over any intercepts of enemy communications during a time of war. shut it down, not the intercepts.

It should also be noted that one of the hang ups on a temporary compromise to keep intelligence flowing is Patrick Leahy's obsession with gathering documents he has no right to. He is holding national security hostage to his demand for documents about the original authorization. Keep in mind that this is a senator who has a history of leaking national security documents for political purposes. Even if there were not legitimate concerns about executive privilege, there would be legitimate concerns about showing sensitive documents to Sen. Leahy. He is not a man worthy of trust. He continually has shown bad faith on matters such as this as well as judicial nominations. If we get hit by an attack that could have been uncovered by an intercepted communication, Leahy should be put on trial.

Not surprisingly the NY Times Editorial Board comes down on the side of Democrat paranoia and against the legitimate collection of intelligence. Their position is that they would mean we would not have the intelligence in some circumstances. They may be willing to die with that situation, but they should not expect the rest of us to be so foolish.