December 14, 2004,
We are dubious that the much-ballyhooed reform bill, passed last week, will improve American intelligence. But the caterwauling over one of the new law's actual improvements is encouraging. As long as reform is merely a euphemism for bureaucratic reshuffling (and bloating), the September 10 crowd is all for it. But the minute it approaches meaningful change, self-anointed civil-liberties guardians and many Democrats instinctively resist it.
The new bill provides a slight but important addition to the government's authority to eavesdrop on, or search, would-be terrorists under the Foreign Intelligence Surveillance Act (FISA). That 1978 law permits federal agents conducting intelligence investigations (as opposed to ordinary criminal investigations) to wiretap or search operatives of "foreign powers" (i.e., other countries or international terrorist organizations) who act inside the U.S. Such investigations are primarily aimed at intelligence gathering to protect national security, not at prosecution. The feds, moreover, may not act on their own; they must first obtain approval from the FISA court by showing probable cause that their target is an "agent of a foreign power."
Experience, though, has shown significant gaps in FISA. It does not reach the so-called "lone wolf" scenario i.e., a non-American who may be unaffiliated with a recognized terrorist organization but is nonetheless preparing a WMD strike. Nor does it account for the more common situation in which investigators suspect a non-American is plotting a terror attack but have not yet identified the foreign power to which he is tied.
does not bode well for
other real reforms.”
The latter is the Zacarias Moussaoui situation. In August 2001, he was in custody on immigration violations and had appeared to engage in hijacking preparations. But the FBI refused its investigators' request to seek a FISA search warrant which might have uncovered ties to the ongoing 9/11 plot because they lacked evidence that Moussaoui was connected to al Qaeda. That evidence was not developed until after 9/11, by which point it was, of course, too late.
The new law fills these gaps. It does not permit surveillance of Americans. Even regarding non-Americans, it does not authorize an investigation unless the FBI first shows the FISA court probable cause that the target is engaging in or preparing for terrorism. It is a sensible, modest improvement. The shrieking over it does not bode well for other real reforms, such as the immigration-enforcement measures abandoned last week, supposedly to be taken up next year.