Preventing a similar attack in the U.S. requires more than military might; it takes extraordinary effort and coordination between federal, state and local officials. But the local end of that effort may be in jeopardy, judging from recent letters between New York Police Commissioner Ray Kelly and U.S. Attorney General Michael Mukasey. As the Journal describes it, the anti-anti terror lobby has constrained Bush Administration intelligence programs, making it "harder to intercept terrorists before they strike."
Those constraints are having a major impact at the local level, where Commissioner Kelley--and other local counter-terrorism officials--claim that current intelligence laws are limiting their ability to prevent the next Mumbai. As the WSJ explains:
The city and the Justice Department are feuding over the Foreign Intelligence Surveillance Act, or FISA, the 1978 domestic wiretapping law that was amended this year and requires a warrant to listen in on suspected foreign terrorists. Mr. Kelly says that Justice's FISA policies are "unduly constraining" his high-priority "international terrorism investigations in the greater New York area."
Two city applications for electronic surveillance, one in June and the other in September, got quashed -- not by the FISA court, but by Justice's own legal team. As a municipal outfit, the police intelligence division cannot appeal directly to the special FISA panel of rotating judges but must instead work through DOJ. Both cases are classified.
Mr. Kelly was furious and let Mr. Mukasey know it in a searing critique. Someone leaked the October correspondence late last month, and though each party blames the other, both have since walked back from public conflict. In any event, whoever leaked made his point. Mr. Kelly's letter exposed a "lack of urgency and excessive time lags" in processing FISA applications; as well as a bureaucracy that insists on "frequently long and unjustifiable delay," even "weeks of delay." This is disturbing enough given fast-moving terror plots.
But Mr. Kelly's main criticism -- "an unnecessarily protracted, risk-averse process that is dominated by lawyers, not investigators and intelligence collectors" -- is far more troubling. He believes that Justice is applying "inappropriately high standards of probable cause" that stop "close cases," which "involve considerable uncertainty," from ever going before a FISA judge.
Kelly's critique affirms the critique of the current system. Running wiretap requests through the FISA system is slow and sometimes cumbersome. And, the standards apparently established by Justice Department lawyers mean that some surveillance requests will never be approved. We can only wonder what terrorist plots may be percolating right now, because a wiretap petition failed to meet the requirements of probable cause.
The Journal reminds us that the real problem isn't federal standards, or the impatience of the NYPD. It's FISA itself:
FISA was passed before the advent of disposable cell phones, encrypted emails and high-speed fiber optic networks. Now we live in a world where terrorist communications that originate in, say, Peshawar happen to move through U.S. switching networks. The executive branch already possesses the Constitutional authority to monitor such communications, but Democrats and the political left claimed it was "illegal" under FISA.
Then the anti-antiterror bar filed multibillion-dollar lawsuits against the telecom companies whose good-faith assistance after 9/11 made such surveillance possible. The goal was to shut down the program, and the telcos made it clear they couldn't cooperate without Congress's blessing. Forced to choose between a Democratic deal that gave the companies legal immunity or giving up a key U.S. antiterror tool, President Bush chose the former. The price -- the one Commissioner Kelly is paying -- was narrowing the government's antiterror wiretapping powers.
What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a "lack of accountability" and "the lack of transparency into the inner workings of the FISA process." If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won't even know who that judge is. Meanwhile, the very Members of Congress who insisted on FISA's limitations will blame the executive branch that they put under the supervision of those anonymous judges.
And, the power of those judges will likely increase under an Obama Administration and a Democratic-controlled Congress. Meanwhile, the terrorists keep plotting and Kelly's comments are a stark reminder that we are not immune from future attacks--particularly if we entrust key decisions to lawyers, not security officials.