A Case for Abolishing FISA

Today's featured article in Opinion Journal makes a case for abolishing FISA by pointing out the obvious constitutional problems inherent in the statute, and the unnecessary burden these additional layers of legal approval place on our intelligence gathering abilities:

What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.

As a practical war-fighting matter, this interferes with the ability to gather intelligence against anonymous, al Qaeda-linked phone numbers. FISA warrants apply to people, and are supposed to require "probable cause" that the subject is an agent of a foreign power. But as Mr. Gonzales and Deputy National Intelligence Director Michael Hayden explained Monday, in fast-moving anti-terror operations it's often impossible to know if someone on the U.S. end of an al Qaeda phone call is actually an "agent." That means the government must operate on a different "reasonable basis" standard.

FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. "We can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time," as Mr. Gonzales put it….

Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself. The Administration even decided against warrantless wiretaps on al Qaeda suspects communicating entirely within the U.S., though we'd argue that that too would be both constitutional and prudent.

As the article points out, the Bush Administration has gone to great lengths to ensure the wiretaps are done both legally, and with limited scope. Far from being a telecommunications blanket draped over and snooping on huge numbers of law abiding citizens, these wiretaps have, if anything, been too limited.

Not only has this president ignored politics and poll-driven, Clintonesque, decision making in order to protect us from terrorists who wish us harm, he has also stopped short of his full authority to ensure your privacy is protected as well.

That said, what exactly are the mainstream media and self-serving politicians hoping to accomplish in their attempts to destroy Bush at any cost? If you think they're actually the ones who are trying to protect you, then I'm afraid you're dead wrong. (Pun intended)

Tags: Politics, Bush, FISA, Opinion Journal, NSA, Wiretaps, Intelligence