34 | http://www.nationalreview.com MARCH 23 , 2020networks backed by anti-Western state sponsors was not per-
mitted to spoil the mood. The Clinton administration was
adamant that it would regard terrorism as a crime problem, not
a national-security challenge fit for a forcible response.
In this zeitgeist, Justice Department officials were agitated
over the possibility that rogue criminal investigators might
abuse FISA, using national-security surveillance powers to
steer criminal investigations when they could find no proba-
ble cause of a crime. To prevent this abuse,Clinton’s Justice
Department imposed “the wall”—internal procedures that
effectively discouraged the FBI’s foreign counterintelligence
division from sharing information with its criminal division
and federal prosecutors. The idea was to avoid using FISA
surveillance to taint criminal prosecutions.
But the consequences were catastrophic. Most obvious was
the inability of our security agencies to map the jihadist threat.
Less apparent but just as real: This transmogrification of a
security threat into a legal morass, in which terrorist prosecu-
tions (usually after attacks occurred) were prioritized over
counterintelligence measures (meant to stop attacks from
occurring), made the FISC the wall’s guardian. There was no
empirical evidence of FISA’s being invoked pretextually, and
there is nothing inherently illegitimate about the use of law-
fully collected foreign intelligence to bolster criminal prose-
cutions. Yet the wall created just the kind of hypertechnical
legal complication that a judicial tribunal could sink its teeth
into. It seemed to validate the FISC’s existence.T
HREEthings changed everything. The 9/11 attacks
exploded the serene illusion that America was con-
fronted by a mere crime problem; the Lawyer Left’s
tireless crusade against aggressive Bush-Cheney counterter-
rorism provoked a judicial backlash; and the revolution in
telecommunications technology eviscerated core assumptions
about limitations on FISA’s reach.
The shocking murder of nearly 3,000 Americans, in Pearl
Harbor–style sneak attacks on iconic economic, military, and
political targets, fleetingly brought into sharp relief the absur-
dity of pretending that international terror networks backed by
anti-American state sponsors could be quelled by indictments
and judicial proceedings. In marshaling a forcible response
that prioritized military and intelligence operations designed
to prevent future attacks, President George W. Bush reason-
ably asked whether his administration was doing everything
that could be done on a proper war footing.
Logically, this prompted two internal administration pro-
posals. First, the wall needed to come down. It was legally
unnecessary and reckless from a security perspective. And it
had also made investigators miss at least one thread of the
9/11 plot—FBI headquarters having directed its criminal
investigators not to assist intelligence agents in hunting sus-
pected terrorists who, just weeks later, plowed American
Airlines Flight 77 into the Pentagon. Second, the president’s
inherent authority to order national-security surveillance of
potential foreign enemy operatives in wartime should not be
subordinated to the constitutionally dubious FISA process—
at least not in all instances. President Bush endorsed both
changes. The Justice Department issued a directive that razed
the wall, relieving the FBI of blinders that had artificiallycompartmentalized vital information streams. Moreover, the
president authorized a warrantless surveillance program,
directing that agents were free to monitor American-based
suspected terrorists who were believed to be communicating
with overseas terror networks.
The FISC rebelled. Our armed forces had been dispatched
to Afghanistan; the intelligence agencies were scrambling to
map jihadist cells seeking to reprise the 9/11 atrocities; and,
with the PATRIOT Act, Congress endorsed the dismantling of
barriers to intelligence sharing. Yet the FISC tried to re-erect
the wall by judicial fiat. The court was finally overruled by the
Foreign Intelligence Surveillance Court of Review—the first-
ever decision by the appellate court that had been created by
FISA 24 years earlier. The higher court also pointed out that if
the president’s authority to collect intelligence against foreign
powers stemmed from Article II of the Constitution, it could
not be repealed by FISA or any other statute.
This is rudimentary constitutional law. Yet it counted for
nothing when, in late 2005, the New York Timespublished a
story, based on illegal classified leaks by intelligence offi-
cials, revealing that Bush had authorized the National
Security Agency to conduct warrantless surveillance of sus-
pected cross-border terrorist communications. It should have
been clear that the president had the constitutional authority to
do this, and that the action was a measured response in a state
of war provoked by a massive enemy attack that prompted a
congressional authorization of military force.
Nevertheless, the NSA program got entangled in the
Democrats’ political and philosophical opposition to Bush’s
determination that the Clintonian law-enforcement approach
to counterterrorism was folly. The opposition was led by pro-
gressive academics—many of the same ones who later fell
silent as President Obama unilaterally directed targeted assas-
sinations and military interventions. Warrantless surveillance
joined a bill of particulars that included detentions of enemy
combatants at Guantanamo Bay, trials by military commis-
sion, the PATRIOT Act’s enhancement of counterintelligence
investigative powers, and enhanced interrogation (including
forcible waterboarding) of high-value terrorist detainees—all
framed by the Left and many libertarians as a betrayal of the
rule of law.
Concurrently, the telecom evolution to digital technolo-
gy—supplanting the analog technology regnant when FISA
was conceived—created a new quandary. The evolution was
a boon to the NSA, which now could sweep up hundreds of
millions of communications globally and screen them
through sophisticated algorithms. But it also meant that vast
quantities of innocent communications, including those of
Americans, were being captured (even if they were unlikely
to be monitored). Further, even if non-Americans outside
the United States were conversing by phone, email, or text,
the Inter net’s architecture zoomed the digital packets of these
communications through transmission hubs in the United
States—meaning that they now fell within the physical juris-
diction of the federal courts.
In the Lawyer Left’s anti-Bush fervor, it was only a matter
of time until courts began ruling that the new technology
brought surveillance of even wholly foreign communications
into the FISA framework. This morphed FISA into something
that its pioneers had foresworn. It had been conceived as a2col_QXP-1127940309.qxp 3/4/2020 1:53 AM Page 34
UPLOADED BY "What's News" vk.com/wsnws TELEGRAM: t.me/whatsnws