No license to spy

The Wall Street Journal

We consider ourselves civil libertarians, as wary as anyone of government power. Which is why we're scratching our heads over the fear and loathing unleashed by the latest court ruling in favor of the Bush Administration's anti-terror efforts.

On Monday the Foreign Intelligence Court of Review agreed with Attorney General John Ashcroft that the law permits much more cooperation between the FBI and Justice Department prosecutors in ordering wiretaps of terror suspects. Somehow we thought this is exactly what everyone wanted, since "intelligence sharing" has been widely cited as one of the government's failures before 9/11. Bipartisan majorities in Congress passed the USA Patriot Act to allow just that.

But to hear the reaction to Monday's ruling, you'd think the KGB has been unleashed on Main Street. Ann Beeson of the ACLU says the judgment creates a "rubber stamp" for "intrusive surveillance warrants." And Michigan Democrat John Conyers of the House Judiciary Committee declares that "Piece by piece, this Administration is dismantling the basic rights afforded to every American under the Constitution." This is all over the top, even for these folks. FBI agents will not suddenly be able to snoop into American bedrooms. U.S. officials who want a wiretap warrant under the 1978 Foreign Intelligence Surveillance Act will still have to convince a court that there is probable cause to believe the target is an agent of a foreign power or terrorist organization. That standard has not been relaxed in the least, as the Court of Review noted in saying the wiretap practices are consistent with the Fourth Amendment.

The real issue is simply the extent to which there can be information sharing between intelligence officials at the FBI and the criminal division at Justice. Under old Justice guidelines -- an overreaction to the wiretapping scandals of the FBI's Hoover era -- a third party had to be present whenever the two met to discuss a case. But that "chaperone" system proved unwieldy, and even before September 11 there were moves afoot to relax those rules.

Then in May the lower FISA court said such a change was not permissible. But on Monday the unanimous three-judge appellate Review Court disagreed, saying not only did the Patriot Act give Justice this right, it existed even under the original FISA statute. Moreover, the Review Court said that creating a "wall" of separation between intelligence and law enforcement officers made no sense because "the definition of an agent of a foreign power ... is grounded on criminal conduct" such as "espionage, sabotage or terrorism."

Along the way, the review panel cited such liberal authorities as Democrats Pat Leahy and Dianne Feinstein about the purpose of the Patriot Act. Senator Feinstein: "The effect of this provision will be to make it easier for law enforcement to obtain a FISA search or surveillance warrant for those cases where the subject of the surveillance is both a potential source of valuable intelligence and the potential target of a criminal investigation."

Exhibit A in proving Ms. Feinstein's point is the case of "20th hijacker" Zacarias Moussaoui. FBI headquarters declined to seek a FISA warrant against him before 9/11 because it didn't think it had a strong enough case. Field agents were aware that terrorists might be looking into flight schools as Moussaoui had done, and they wanted to look at his computer but lacked solid information about his terror connections.

Every free society needs civil-libertarian watchdogs, but the problem with ours after 9/11 is that they've treated even the smallest change in intelligence procedures as the arrival of Big Brother. If they keep it up, no one will believe them when they're finally right.