From the WSJ online editorial page.
THE WAR ON TERROR
Our Right to Security
Al Qaeda, not the FBI, is the greater threat to America.
BY DEBRA BURLINGAME
Monday, January 30, 2006 12:01 a.m. EST
One of the most excruciating images of the September 11 attacks is the sight of a man who was trapped in one of the World Trade Center towers. Stripped of his suit jacket and tie and hanging on to what appears to be his office curtains, he is seen trying to lower himself outside a window to the floor immediately below.
Frantically kicking his legs in an effort to find a purchase, he loses his grip, and falls.
That horrific scene and thousands more were the images that awakened a sleeping nation on that long, brutal morning. Instead of overwhelming fear or paralyzing self-doubt, the attacks were met with defiance, unity and a sense of moral purpose.
Following the heroic example of ordinary citizens who put their fellow human beings and the public good ahead of themselves, the country’s leaders cast aside politics and personal ambition and enacted the USA Patriot Act just 45 days later.
A mere four-and-a-half years after victims were forced to choose between being burned alive and jumping from 90 stories, it is frankly shocking that there is anyone in Washington who would politicize the Patriot Act.
It is an insult to those who died to tell the American people that the organization posing the greatest threat to their liberty is not al Qaeda but the FBI. Hearing any member of Congress actually crow about “killing” or “playing chicken” with this critical legislation is as disturbing today as it would have been when Ground Zero was still smoldering. Today we know in far greater detail what not having it cost us.
Critics contend that the Patriot Act was rushed into law in a moment of panic. The truth is, the policies and guidelines it corrected had a long, troubled history and everybody who had to deal with them knew it.
The “wall” was a tortuous set of rules promulgated by Justice Department lawyers in 1995 and imagined into law by the Foreign Intelligence Surveillance Act (FISA) court. Conceived as an added protection for civil liberties provisions already built into the statute, it was the wall and its real-world ramifications that hardened the failure-to-share culture between agencies, allowing early information about 9/11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi to fall through the cracks.
More perversely, even after the significance of these terrorists and their presence in the country was known by the FBI’s intelligence division, the wall prevented it from talking to its own criminal division in order to hunt them down.
Furthermore, it was the impenetrable FISA guidelines and fear of provoking the FISA court’s wrath if they were transgressed that discouraged risk-averse FBI supervisors from applying for a FISA search warrant in the Zacarias Moussaoui case.
The search, finally conducted on the afternoon of 9/11, produced names and phone numbers of people in the thick of the 9/11 plot, so many fertile clues that investigators believe that at least one airplane, if not all four, could have been saved.
In 2002, FISA’s appellate level Court of Review examined the entire statutory scheme for issuing warrants in national security investigations and declared the “wall” a nonsensical piece of legal overkill, based neither on express statutory language nor reasonable interpretation of the FISA statute.
The lower court’s attempt to micromanage the execution of national security warrants was deemed an assertion of authority which neither Congress or the Constitution granted it. In other words, those lawyers and judges who created, implemented and so assiduously enforced the FISA guidelines were wrong and the American people paid dearly for it.
Despite this history, some members of Congress contend that this process-heavy court is agile enough to rule on quickly needed National Security Agency (NSA) electronic surveillance warrants.
This is a dubious claim. Getting a FISA warrant requires a multistep review involving several lawyers at different offices within the Department of Justice. It can take days, weeks, even months if there is a legal dispute between the principals. “Emergency” 72-hour intercepts require sign-offs by NSA lawyers and pre-approval by the attorney general before surveillance can be initiated.
Clearly, this is not conducive to what Gen. Michael Hayden, principal deputy director of national intelligence, calls “hot pursuit” of al Qaeda conversations.
The Senate will soon convene hearings on renewal of the Patriot Act and the NSA terrorist surveillance program. A minority of senators want to gamble with American lives and “fix” national security laws, which they can’t show are broken.
They seek to eliminate or weaken anti-terrorism measures which take into account that the Cold War and its slow-moving, analog world of landlines and stationary targets is gone. The threat we face today is a completely new paradigm of global terrorist networks operating in a high-velocity digital age using the Web and fiber-optic technology.
After four-and-a-half years without another terrorist attack, these senators think we’re safe enough to cave in to the same civil liberties lobby that supported that deadly FISA wall in the first place. What if they, like those lawyers and judges, are simply wrong?
Meanwhile, the media, mouthing phrases like “Article II authority,” “separation of powers” and “right to privacy,” are presenting the issues as if politics have nothing to do with what is driving the subject matter and its coverage. They want us to forget four years of relentless “connect-the-dots” reporting about the missed chances that “could have prevented 9/11.”
They have discounted the relevance of references to the two 9/11 hijackers who lived in San Diego. But not too long ago, the media itself reported that phone records revealed that five or six of the hijackers made extensive calls overseas.
NBC News aired an “exclusive” story in 2004 that dramatically recounted how al-Hazmi and al-Mihdhar, the San Diego terrorists who would later hijack American Airlines flight 77 and fly it into the Pentagon, received more than a dozen calls from an al Qaeda “switchboard” inside Yemen where al-Mihdhar’s brother-in-law lived.
The house received calls from Osama Bin Laden and relayed them to operatives around the world. Senior correspondent Lisa Myers told the shocking story of how, “The NSA had the actual phone number in the United States that the switchboard was calling, but didn’t deploy that equipment, fearing it would be accused of domestic spying.”
Back then, the NBC script didn’t describe it as “spying on Americans.” Instead, it was called one of the “missed opportunities that could have saved 3,000 lives.”
Another example of opportunistic coverage concerns the Patriot Act’s “library provision.” News reports have given plenty of ink and airtime to the ACLU’s unsupported claims that the government has abused this important records provision.
But how many Americans know that several of the hijackers repeatedly accessed computers at public libraries in New Jersey and Florida, using personal Internet accounts to carry out the conspiracy? Al-Mihdhar and al-Hazmi logged on four times at a college library in New Jersey where they purchased airline tickets for AA 77 and later confirmed their reservations on Aug. 30.
In light of this, it is ridiculous to suggest that the Justice Department has the time, resources or interest in “investigating the reading habits of law abiding citizens.”
We now have the ability to put remote control cameras on the surface of Mars. Why should we allow enemies to annihilate us simply because we lack the clarity or resolve to strike a reasonable balance between a healthy skepticism of government power and the need to take proactive measures to protect ourselves from such threats?
The mantra of civil-liberties hard-liners is to “question authority”–even when it is coming to our rescue–then blame that same authority when, hamstrung by civil liberties laws, it fails to save us. The old laws that would prevent FBI agents from stopping the next al-Mihdhar and al-Hazmi were built on the bedrock of a 35-year history of dark, defeating mistrust.
More Americans should not die because the peace-at-any-cost fringe and antigovernment paranoids still fighting the ghost of Nixon hate George Bush more than they fear al Qaeda. Ask the American people what they want. They will say that they want the commander in chief to use all reasonable means to catch the people who are trying to rain terror on our cities.
Those who cite the soaring principle of individual liberty do not appear to appreciate that our enemies are not seeking to destroy individuals, but whole populations.
Three weeks before 9/11, an FBI agent with the bin Laden case squad in New York learned that al-Mihdhar and al-Hazmi were in this country.
He pleaded with the national security gatekeepers in Washington to launch a nationwide manhunt and was summarily told to stand down. When the FISA Court of Review tore down the wall in 2002, it included in its ruling the agent’s Aug. 29, 2001, email to FBI headquarters: "Whatever has happened to this–someday someone will die–and wall or not–the public will not understand why we were not more effective and throwing every resource we had at certain problems.
Let’s hope the National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, [bin Laden], is getting the most ‘protection.’"
The public has listened to years of stinging revelations detailing how the government tied its own hands in stopping the devastating attacks of September 11. It is an irresponsible violation of the public trust for members of Congress to weaken the Patriot Act or jeopardize the NSA terrorist surveillance program because of the same illusory theories that cost us so dearly before, or worse, for rank partisan advantage.
If they do, and our country sustains yet another catastrophic attack that these antiterrorism tools could have prevented, the phrase “connect the dots” will resonate again–but this time it will refer to the trail of innocent American blood which leads directly to the Senate floor.
Ms. Burlingame, a former attorney, is the sister of Charles F. “Chic” Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001.