Man Without Qualities

Sunday, April 04, 2004

Federal Intelligence Legislation As Suicide Pact

It has been famously and correctly said that the Constitution is not a suicide pact. Unfortunately, the same cannot be said of much of the federal legislation governing the nation's intelligence gathering, especially beginning with the 1978 Foreign Intelligence Surveillance Act (FISA). The disasters of September 11 marked a great failure of intelligence, but that failure of intelligence was but a symptom of an underlying failure of national will and understanding whose loss was marked by the Senate Church committee shenanigans and the passage of the nearly insane FISA, which hugely burdened intelligence gathering and cooperation.

Two years ago a long series of posts here laid out my thoughts on these matters, and now Andrew McCarthy has many insightful things to say in his Commentary article, The Intelligence Mess: How It Happened, What to Do About It:

As with much else in our national life, the bacillus now grown to plague America?’s intelligence apparatus took root in the unrest of Vietnam and the upheaval of Watergate. ... For a generation of activists soon to take up positions of influence in politics, academia, and the media, the antiwar movement inculcated a lasting aversion not only to the exercise of American military power but to the agencies tasked with assessing threats to our national security, not to mention the real-world grunt work of intelligence.

Watergate deepened the aversion. ... Hot on the heels of these misdeeds, the CIA became enmeshed in other domestic spying scandals that were subjected to high-profile probes, first by a commission appointed by President Ford and, in 1976, by the celebrated Senate Select Committee chaired by Frank Church.

Perhaps the first consequence of this chain of events was a long-term decline in the authority of the executive branch of government. The decline stemmed from an illogic that often bedevils the aftermath of scandal: the tendency to confound the sins of a corrupt actor (in this case, Nixon) with a structural weakness in the system itself. In the mid-1970, the new operating premise was that, since robust presidential power was likely to be corrupted, it must therefore be scrutinized and shackled in every respect.

From this there followed a second consequence: a shift of national-security functions, prominently including intelligence-gathering, from the ambit of broad executive discretion to the area where executive action is regulated by Congress and the federal courts. Compared with the "intelligence failures" decried by journalists and politicians today, this shift engendered a continuing calamity.

In the constitutional license given to executive action, a gaping chasm exists between the realms of law enforcement and national security. In law enforcement, as former U.S. Attorney General William P. Barr explained in congressional testimony last October, government seeks to discipline an errant member of the body politic who has allegedly violated its rules. That member, who may be a citizen, an immigrant with lawful status, or even, in certain situations, an illegal alien, is vested with rights and protections under the U.S. Constitution. Courts are imposed as a bulwark against suspect executive action; presumptions exist in favor of privacy and innocence; and defendants and other subjects of investigation enjoy the assistance of counsel, whose basic job is to thwart government efforts to obtain information. The line drawn here is that it is preferable for the government to fail than for an innocent person to be wrongly convicted or otherwise deprived of his rights.

Not so the realm of national security, where government confronts a host of sovereign states and sub-national entities (particularly terrorist organizations) claiming the right to use force. Here the executive is not enforcing American law against a suspected criminal but exercising national-defense powers to protect against external threats. Foreign hostile operatives acting from without and within are not vested with rights under the American Constitution. The galvanizing national concern in this realm is to defeat the enemy, and as Barr puts it, "preserve the very foundation of all our civil liberties." The line drawn here is that government cannot be permitted to fail. ....

In line with this, the executive branch had wide latitude to gather intelligence against potential threats. True, the CIA?’s charter did not permit it to conduct domestic intelligence-gathering?—that task being left to the FBI?—but this affected only which arms of the executive branch could spy on our enemies in which venues. It did not, at least in theory, affect the substance of the information to be gathered.

But cataclysmic changes were ahead, and their harbinger was President Jimmy Carter?’s acquiescence in the 1978 Foreign Intelligence Surveillance Act (FISA). Here, for the first time, Congress and the courts undertook to regulate the gathering of national intelligence, particularly by electronic eavesdropping, against agents of hostile foreign powers. ...

Of course, such wiretapping was already illegal, and the Nixon experience had amply demonstrated the political price to be paid for engaging in it. No matter. Henceforth, the executive branch would not be allowed to use whatever tactics it, as the branch with the most expertise and information, determined were necessary to protect the nation. Rather, it would be compelled to go to a federal FISA court newly created for the purpose, and, as with the procedure for criminal wiretaps, it would need to establish probable cause that the target was an agent of a foreign power. Electronic surveillance would be permitted only if the judges approved.

The impact on intelligence collection was serious. Previously, it would have been laughable to suggest that foreign enemy operatives had a right to conduct their perfidies in privacy?—the Fourth Amendment prohibits only "unreasonable" searches, and there is nothing unreasonable about searching or recording people who threaten national security. (The federal courts have often recognized that the Constitution is not a suicide pact.) Now, such operatives became the beneficiaries of precisely such protection. Placing so severe a roadblock in the way of a crucial investigative technique necessarily meant both that the technique would be used less frequently (thereby reducing the quantity and quality of valuable intelligence) and that investigative resources would have to be diverted from intelligence-collection to the rigors of compliance with judicial procedures (which are cumbersome).

This was only the start of the debacle. Courts and the organized defense bar soon began to ply the FISA statute with hypothetical governmental abuses. What if, they worried, a national-security wiretap yielded evidence of an ordinary crime?—not an unlikely event, given that terrorists tend to commit lots of ordinary crimes, including money laundering, identity fraud, etc. This was no problem under FISA as written: intelligence agents could simply pass the information to agents of the criminal law, who could then use the damning conversations in court. But what if such law-enforcement agents, for their part, were to try to use FISA as a pretext to investigate crimes for which they themselves lacked probable cause to secure a regular criminal wiretap?

In one sense, the suggestion was not out of line?—wiretap conversations are devastating evidence, and defense lawyers routinely strain to have them suppressed. But the notion was logically absurd. If a criminal investigator was going to act corruptly, it would be far easier for him to fabricate evidence showing probable cause for a regular wiretap (by pretending, for example, to have an anonymous source who had bought illegal drugs from the target) than to trump up a national-security angle necessitating an additional set of internal approvals. Nor was there any indication that such chicanery was actually afoot. But reality is rarely an obstacle for those who see life as an ongoing law-school seminar. Gradually, courts rewrote FISA, grafting onto it a so-called "primary purpose" test requiring the government to establish not only probable cause that it was targeting operatives of a foreign power but also that its real reason for seeking surveillance was counterintelligence, not criminal prosecution.

As one would expect, this created among many prosecutors a grave apprehension about "the appearance of impropriety"?—a hidebound concept governing lawyer ethics that is perfectly nonsensical in the life-and-death context of national security. Even as militant Islam began its terrorist war against the United States with the 1993 WTC bombing and the 1994-95 "Bojenka" plot to blow a dozen American airliners out of the sky over the Pacific, the Justice Department was worrying that agents and prosecutors might be perceived to be using intelligence-gathering authority to build criminal prosecutions. Often, the result was weeks or more of delay, during which identified terrorists who happened also to be committing quotidian crimes went unmonitored while the government dithered over whether to employ FISA or the criminal wiretap law. The insanity reached its apex in 1995 with the "primary purpose" guidelines drafted by the Clinton administration: henceforth, a firewall would be placed between criminal and national-security agents, generally barring them even from communicating with one another.

The damage from the firewall and the impediments to FISA has been incalculable. It took ten years to make the racketeering case against Sami al-Arian, the professor accused of helping run the murderous Palestinian Islamic Jihad from the campus of South Florida University, because the wealth of information collected by intelligence agents was withheld from their criminal counterparts. And that was a pittance compared with what happened in the waning weeks before the September 11 attacks. Zacarias Moussaoui, who had paid cash for pilot training (and was reported to authorities when his bizarre behavior?—including intense interest in how cabin and cockpit doors worked?—could no longer be ignored), was detained by the immigration service. Worried FBI intelligence agents were desperate to search his computer, but were turned down by supervisors who decided there was insufficient evidence to go to the FISA court. His al-Qaeda membership and numerous connections to the hijackers were not uncovered until after the attacks.

And the Moussaoui travesty itself pales in comparison to the story of Khalid al-Midhar and Nawaf al-Hazmi, excruciatingly recounted in Slate by Stewart Baker, general counsel of the National Security Agency during the early Clinton administration. The pair, who had trained to pilot planes, lived in California. In August 2001, an astute FBI intelligence agent was trying to find them, and asked the criminal division for help. But FBI headquarters stepped in and insisted that the firewall not be breached: criminal agents were to stay out of the intelligence effort. A few weeks later, al-Midhar and al-Hazmi plunged Flight 77 into the Pentagon, their manifold ties to Mohammed Atta and the other hijackers kept safely under wraps.

Read the whole article. But be prepared to feel sick and distinctly insecure. The favored liberal approach of making scapegoats out of CIA and FBI agents who failed to "connect dots" seen clearly only in hindsight while celebrating sacred agency whistleblowers, would just make the problem hugely worse by obscuring the underlying structural and attitudinal problems. Those problems have been imposed on intelligence gathering and analysis since the 1970's - almost always by the very left wing activism that spawned John Kerry. As Mr. McCarthy points out, many people in the Congress, the courts, and the media still don't understand what went wrong. A lot remains to be changed. But it's not what many in the mainstream media and the political and academic establishments want to be changed. Quite the contrary. The Churches and Carters are still with us. They just have different names. And of those who are running for office most, but by no means all, are on the Democratic ticket.

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