Victoria Toensing in today’s Wall Street Journal has an excellent piece (sub. req’d) that takes on critics of the Bush administration’s NSA surveillance program. She points out, among other things, the folly of two of the most often heard arguments peddled by critics: 1) you can always go back and get a FISA warrant 72 hours after placing the tap; and 2) why did the president not ask Congress to change the FISA law.
Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B’s number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil? Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, “Congress will make it a political issue and we may come away with less ability to monitor.” The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern. It took 9/11 for Congress to pass the amendment breaking down the “wall,” which had been on the Justice Department’s wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation. There are other valid reasons for the president not to ask Congress for a legislative fix. To have public debate informs terrorists how we monitor them, harming our intelligence-gathering to an even greater extent than the New York Times revelation about the NSA program. Asking Congress for legislation would also weaken the legal argument, cited by every administration since 1978, that the president has constitutional authority beyond FISA to conduct warrantless wiretaps to acquire foreign intelligence information.
