One of the principal criticisms leveled against the Clinton administration’s handling of terrorist incidents including the 1993 World Trade Center bombing, the US Embassy bombings in Tanzania and Kenya, and the attack on the USS Cole was that terrorism could not be suppressed or countered exclusively through law enforcement investigations. Clinton’s critics, justifiably, have condemned him for not doing more to take the fight to the terrorists abroad. Clinton’s approach to terrorism, primarily consisting of arresting and prosecuting terrorists through our porous judicial system, appeared to be the antithesis of President Bush’s after 9/11.
Post 9/11, Bush adopted the pre-emptive strike doctrine and invaded Afghanistan, declared terrorists as “enemy combatants” who could be held captive indefinitely in a state of war, and implemented military tribunals to process terrorists captured in combat with US troops. Detainees were questioned and yielded valuable information on Al Qaeda leadership and cell structure. The NSA domestic surveillance program was effectively utilized to glean information from intercepted communications between terrorists abroad and their supporters/operatives in America. The Clinton and Bush strategies could not have been more diametrically opposed.
Today, however, the Bush administration’s domestic strategy for conducting the Global War on Terror (GWOT) has lost its unique bravado and in its place the soft Clinton approach has reemerged. Yesterday Attorney General Gonzalez announced that monitoring of international communications involving suspected terrorists in the United States will require authorization and oversight from a court established by the Foreign Intelligence Surveillance Act (FISA). After years of insisting that the President’s program was legal and that immediate discovery and disruption of terrorist plots within the US could not be accomplished through traditional court orders, the Bush administration has now reversed course under pressure from the newly empowered Democrats in Congress. What are the practical implications of this reversal?
The Bush administration now insists, with hypocritical confidence, that the secret FISA court will operate with much more flexibility and speed than a traditional court, and thus will not hamper the efforts of America’s intelligence agencies once a suspect has been identified. While Attorney General Gonzalez’s announcement touts FISA court speed and usefulness, the obvious question is why, if FISA courts do not hamper the rapid response needed for counterterrorist investigations, the administration has avoided them like the proverbial plague since 9/11? Administration officials have staunchly defended the NSA domestic surveillance program by arguing that under post 9/11 laws an early warning detection system was critical to national security and thus could be authorized by the President independent of a FISA court. Consider this explanation for the need to circumvent FISA courts in a letter sent by the Department of Justice to the House and Senate Intelligence committees in December 2005:
FISA could not have provided the speed and agility required for the early warning detection system. . . . There is undeniably an important and legitimate privacy interest at stake. That must be balanced, however, against the government's compelling interest in the security of the nation.
Does the President feel the “early warning notification” provided by the NSA domestic surveillance program is no longer needed? Is the government’s interest in national security less compelling now than it was in December 2005? The reversal by the Bush administration signals an abandonment of the aggressive domestic counterterrorist stance once championed confidently by the President. While Justice Department officials submit applications for surveillance (a subpoena equivalent) to the FISA court, American intelligence agencies will be missing communications between terrorists living among us and their international planners/financiers. The letter from the Justice Department further stated that “FISA has proven to be a very important tool, especially in longer-term investigations.” A FISA court may operate with a less glacial pace than a federal district court, but that should be of little comfort to those who understand that real-time communications interception is critical to identifying and thwarting imminent threats.
Like its predecessor, the Bush administration has placed America’s domestic safety in the hands of judges. In the case of FISA courts, the judges routinely rotate, resulting in decisions made by judges with no continuity or grasp of the full context of the application for surveillance presented before them. Rotating judges unfamiliar with established precedent will delay authorizing time-sensitive surveillance while researching previous applications, resulting in precisely the ponderous, inefficient review process the Bush administration has been intentionally and justifiably avoiding since 9/11.
Because we have been unsuccessful in infiltrating Al Qaeda and other advanced terrorist groups, communications intercepts are often the only advance warning available to our intelligence and law enforcement agencies. “Fighting the terrorists there so we won’t have to fight them here” may be a catchy slogan, but the reality is we ARE fighting them here and the administration’s reversal on domestic surveillance will open wider the window of opportunity for terrorists preparing for attacks in America. If we are serious about winning a Global War on Terror, further binding the hands, or in this case covering the ears, of our intelligence/law enforcement agencies is a dangerous step toward a counterterrorist strategy reminiscent of Clinton.
Technorati Tags: Alberto Gonzalez Attorney General Domestic Surveillance Program FISA Court FISA Bush Administration NSA Law Enforcement terrorism national security Bill Clinton Global War On Terror
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