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Commentary By Heather Mac Donald

No Green Light To Spy on Americans

Don’t believe the mainstream press’s account of the latest court decision on intelligence-sharing. Maybe it’s post-election payback. Or maybe just rank ignorance. Whatever the cause, the press’s flagrant distortion of a recent court decision on intelligence sharing represents an escalation of the elite’s war on the war on terror.

The ruling of the Foreign Intelligence Surveillance Court of Review on November 18 did not come a moment too soon. The court lifted a set of Clinton-era guidelines that had paralyzed the country’s intelligence capacity and caused some of the most notorious failures to foil the 9/11 attacks. Under the now defunct guidelines, two FBI agents on the same Al Qaeda squad could not talk to one another about a suspected terrorist if one of the agents was gathering wiretap anti-terrorism intelligence on him, while the other agent was working a criminal case against a terrorist associate of his. Nor could the local U.S. attorney, who may have developed detailed knowledge of Al Qaeda from previous prosecutions, advise the intelligence agent on possible other wiretap targets or on how to use the wiretap intercepts.

These “Walls” between intelligence gathering and criminal enforcement could not have been more inimical to fighting terrorism, which requires maximum sharing of information and expertise in order to “connect the dots.” And according to the Foreign Intelligence Surveillance Court of Review nothing in the Constitution or in the original law regulating foreign intelligence gathering ever required such artificial barriers. But in the years after Congress passed the Foreign Intelligence Surveillance I

(FTSA) in 1978, civil libertarian zealots imposed on it a specious distinction between investigating suspected terrorists for intelligence purposes, on the one hand, and for evidence of a terrorist crime, on the other. The Clinton guidelines took this distinction to its most absurd, and lethal, conclusion.

The review courts new decision, which is a model of legal reasoning and common sense, merely returns FTSA to its original understanding. Congress intended to do the same when it passed the USA Patriot Act after 9/11, the court held—an intent the lower FISA court had thwarted in refusing to lift the Clinton Wall guidelines. The FTSA review court reversed the lower court, to allow all parties with knowledge of terrorism to collaborate throughout an investigation. And that is all it did. The review court did not change the legal standard for surveilling a suspected terrorist; the justice Department needs to make the same factual showing to the FTSA court to get a wiretap warrant as before the recent ruling.

You’d never know that from press accounts, however. According to the media, the FISA review court has unleashed the tyrannous Republicans in Washington to spy on every American. No one will be safe from the spooks. The New York Times titled its outraged editorial: “A Green Light to Spy.” It announced that the court had “handed the government broad new authority to wiretap phone calls, intercept mail and spy on Internet use of ordinary Americans.” The Los Angeles Times reported that the court had “cast aside” the distinction between spying on foreign agents and on ordinary criminals. Reuters announced that the ruling “expanded” the government’s power to wiretap terrorism suspects. The Washington Post, though a paragon of accuracy compared with the New York Times, nevertheless warned that the decision was part of a Bush administration pattern of “Chipping Away at Liberty.” ABC News warned that it had become “a whole lot easier ... to prove the need for a wiretap.” And on and on.

Such falsehood is truly breathtaking. Take the New York Times’s charge that the government now has “broad new authority” to spy on “ordinary Americans.” The FISA standard for wiretapping Americans remains as high after the review court ruling as before: To get a wiretap warrant for an American terror suspect, the government must show not only that he is an “agent of a foreign power” but that he is “knowingly engaged in international terrorism.” The government may not base its case for a warrant by citing activities protected by the First Amendment. Nothing in the ruling changes that demanding standard. The fact that prosecutors and FBI criminal agents can now share their expertise with intelligence agents during the course of an investigation, or even instigate a wiretap request, does not alter the legal standard that wiretap request must meet. “Ordinary Americans” are as protected from groundless surveillance after the decision as before.

The Los Angeles Times, ABC News, and Reuters perpetrate the same falsehood. Contrary to the Los Angeles Times, even “ordinary criminals,” in the paper’s words, enjoy the same protections against unwarranted FISA surveillance after the court ruling as they did before. While the Washington Post at least acknowledges that the decision “does not actually make it easier for the government to conduct wiretaps,” it then undercuts that insight by claiming that the ruling is part of an “emerging” legal system that “lets Americans be investigated and locked up without any of the normal protections of the justice system.”

Such a claim is doubly ridiculous. If the FISA ruling did not change the probable cause requirements for a wiretap, then it cannot be part of any new legal system with lower safeguards. But to suggest that anything about FISA strips Americans of the “normal protections of the justice system” is absurd. The act spawned layer upon layer of bureaucracy within the FBI and justice Department that vet every wiretap request and oversee its administration. The differences between the requirements for a criminal wiretap and a FISA wiretap for suspected American terrorists are de minimis and self-canceling—FISA has more onerous standards in some areas, criminal wiretaps impose higher standards in others.

The media’s misrepresentations do not end with FISA’s probable cause standard, however. The New York Times utterly mischaracterizes the holding of the lower FISA court, claiming that it found that the justice Department had improperly used FISA in “ordinary criminal prosecutions.” The court found nothing of the sort. The justice Department did disclose to the court that in about 75 instances, intelligence agents in the Clinton administration had shared wiretap information with criminal terror investigators without going through the massive bureaucratic and judicial approval and oversight process. In one case, the Clinton FBI failed to disclose that a terror suspect was also under criminal investigation. But there is absolutely no indication that any of the 75 oversights occurred in “ordinary criminal prosecutions,” rather than in ten-or investigations that may have had a criminal side as well.

The Times also reports that the FISA appeals court allowed prosecutors to use FISA wiretaps in terrorist cases. Wrong again. Prosecutors have always had permission to use FISA wiretaps in court, so long as the intelligence agents and criminal investigators observed all the crippling and nonsensical arcana of the Wall.

The FISA controversy has generated high-falutin’ posturing from the media about our eroding freedom and the allegedly sacred distinction between investigating and prosecuting terrorism. It is easy to be righteous, however, when you carefully avoid taking note of the real-world consequences of the abstract principles you advocate. Virtually none of the media defenders of the Clinton Wall guidelines ever acknowledged their existence or gave the slightest hint to the public of the insane bureaucratic red tape and action-stopping administrative barriers that the Wall created. By covering up the nitty-gritty details of the Wall and its role in the failure to avert 9/11, the opinion elites implicitly endorsed the dysfunctional status quo. Before they pronounce again about the crucial separation of intelligence gathering and law enforcement in the war on tenor, the elite press should answer just one question: In what respect do two FBI agents who pool everything they’ve learned about Al Qaeda jeopardize American freedom?

While particularly egregious, the press coverage of the FISA appeal is nevertheless typical of how relentlessly the media have distorted the Bush administration’s war on terror. However untruthful, such media pressure exercises enormous influence on policy-makers. This recent eruption of misrepresentation illustrates yet again that the liberal elites pose the greatest domestic obstacle to national security.