Don’t believe the mainstream press’s account of the latest court decision on intelligence sharing.
Maybe it’s post-election payback. Or maybe just rank ignorance. Whatever the cause, the press’s flagrant distortion of a recent court decision on intelligence sharing represents an escalation of the elite’s war on the war on terror.
The ruling of the Foreign Intelligence Surveillance Court of Review on November 18 did not come a moment too soon. The court lifted a set of Clinton-era guidelines that had paralyzed the country’s intelligence capacity and caused some of the most notorious failures to foil the 9/11 attacks. Under the now defunct guidelines, two FBI agents on the same al-Qaida squad could not talk to one another about a suspected terrorist if one of the agents was gathering wiretap anti-terrorism intelligence on him, while the other agent was working a criminal case against a terrorist associate of his. Nor could the local U.S. attorney, who may have developed detailed knowledge of al-Qaida from previous prosecutions, advise the intelligence agent on possible other wiretap targets or on how to use the wiretap intercepts.
These “Walls” between intelligence gathering and criminal enforcement could not have been more inimical to fighting terrorism, which requires maximum sharing of information and expertise in order to “connect the dots.” And according to the Foreign Intelligence Surveillance Court of Review, nothing in the Constitution or in the original law regulating foreign intelligence gathering ever required such artificial barriers. But in the years after Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978, civil libertarian zealots imposed on it a specious distinction between investigating suspected terrorists for intelligence purposes, on the one hand, and for evidence of a terrorist crime, on the other. The Clinton guidelines took this distinction to its most absurd, and lethal, conclusion.
The review court’s new decision, which is a model of legal reasoning and common sense, merely returns FISA to its original understanding. Congress intended to do the same when it passed the USA Patriot Act after 9/11, the court held—an intent the lower FISA court had thwarted in refusing to lift the Clinton Wall guidelines. The FISA review court reversed the lower court, to allow all parties with knowledge of terrorism to collaborate throughout an investigation. And that is all it did.The review court did not change the legal standard for surveilling a suspected terrorist; the Justice Department needs to make the same factual showing to the FISA court to get a wiretap warrant as before the recent ruling.
You’d never know that from press accounts, however. According to the media, the FISA review court has unleashed the tyrannous Republicans in Washington to spy on every American. No one will be safe from the spooks. The New York Times titled its outraged editorial: “A Green Light to Spy.” It announced that the court had “handed the government broad new authority to wiretap phone calls, intercept mail and spy on Internet use of ordinary Americans.” The Los Angeles Times reported that the court had “cast aside” the distinction between spying on foreign agents and on ordinary criminals. Reuters announced that the ruling “expanded” the government’s power to wiretap terrorism suspects. The Washington Post, though a paragon of accuracy compared with the New York Times, nevertheless warned that the decision was part of a Bush administration pattern of “Chipping Away at Liberty.” ABC News warned that it had become “a whole lot easier . . . to prove the need for a wiretap.” And on and on.
[...]The FISA [Foreign Intelligence Surveillance Act] controversy has generated high-falutin’ posturing from the media about our eroding freedom and the allegedly sacred distinction between investigating and prosecuting terrorism. It is easy to be righteous, however, when you carefully avoid taking note of the real-world consequences of the abstract principles you advocate. Virtually none of the media defenders of the Clinton Wall guidelines ever acknowledged their existence or gave the slightest hint to the public of the insane bureaucratic red tape and action-stopping administrative barriers that the Wall created. By covering up the nitty-gritty details of the Wall and its role in the failure to avert 9/11, the opinion elites implicitly endorsed the dysfunctional status quo. Before they pronounce again about the crucial separation of intelligence gathering and law enforcement in the war on terror, the elite press should answer just one question: In what respect do two FBI agents who pool everything they’ve learned about al-Qaida jeopardize American freedom?
While particularly egregious, the press coverage of the FISA appeal is nevertheless typical of how relentlessly the media have distorted the Bush administration’s war on terror. However untruthful, such media pressure exercises enormous influence on policy-makers. This recent eruption of misrepresentation illustrates yet again that the liberal elites pose the greatest domestic obstacle to national security.
Isn't it pitiful and enraging that, next to Al Queda and Islamist terrorists themselves, we're fighting our own "Liberal élite" whiners and carpers in the Media? Did I hear you say, "Duh?"
I know you are all Americans who love the Constitution and our Bill of Rights so read the whole article carefully particularly if you have Tom Daschle-like "concerns" about the new snooping laws!
The media "trash talking" of the Bush Administration's War on Islamist Terror and the consequent fear and even panic those critics engender in us has got to stop!
Thank you, Heather MacDonald for explaining this all to us...I'm going to be visiting the City-Journal website a lot more often!
