Erring on side of safety

Thursday, December 22, 2005

New Hampshire Union Leader

The dangerous slowness of the federal bureaucracy, including that of the courts that approve spying under the Foreign Intelligence Surveillance Act (FISA), is documented by the 9-11 Commission. It is the reason President Bush authorized warrantless wiretaps of the international phone calls of terrorist suspects and their contacts.

Consider the case of Zacharias Moussaoui. Chapter 8 of the 9-11 Commission Report details the repeated roadblocks Minneapolis FBI agents encountered in August 2001, when trying to get FISA authorization for a search of Moussaoui's laptop. When a Washington supervisor objected that there was not enough evidence, the Minneapolis agent said he was "trying to keep someone from taking a plane and crashing into the World Trade Center." The Washington supervisor said that would never happen, and they didn't even know if Moussaoui was tied to al-Qaida. A few weeks later, it happened. Two days after that, on September 13, the British government confirmed that Moussaoui had attended an al-Qaida training camp in Afghanistan.

Bush critics say the warrantless searches are unnecessary because FISA allows the government to obtain approval up to 72 hours after a search. But as National Review's Byron York reported on Monday, the 9-11 Commission last year complained that even after the Patriot Act's changes to FISA, "Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow. Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process." President Bush and Attorney General Alberto Gonzales have said repeatedly that the warrantless wiretaps are necessary in unusual instances when speed is of the utmost importance.

Whether the warrantless wiretaps are in compliance with the letter of the laws governing executive power to spy on citizens remains in dispute. There are those who immediately see in this a sinister Bush plot to spy on his enemies. But it must be remembered that Presidents going all the way back to Franklin Roosevelt have assumed or argued that they had this same power, as the Washington Post noted yesterday. President Bush's claim of such prerogatives is nothing novel. President Clinton argued that the commander in chief had the authority to order warrantless physical searches of citizens' property for intelligence purposes.

Some act as if the defense of our country and our people is a game in which stepping out of bounds, even if it's a close call, means having to stop play and hand the ball to the opponent. But national defense is not a game. A President's decision on whether to tap the phone of a terrorist suspect could mean life or death for thousands of Americans. In the narrowly carved out instances of National Security Agency phone taps of the international phone calls of terrorist suspects and their contacts, President Bush has chosen to err on the side of caution. Four years ago, we all would have appreciated -- even demanded -- that.

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