Editor's Note: This piece is written by Keith Pennock, a member of the Discovery Institute staff.
Two underplayed news items today point to a disturbing trend by the Left to hamper the War on Terror. The first item, picked up in Australia’s “Age”, noted that “At least 30 former Guantanamo Bay detainees have been killed or recaptured on after taking up arms against allied forces following their release.”
Conventional wisdom on the Left is that Guantanamo is full of innocent men. Rep. Jim Moran’s letter to President Bush said as much. The “Age” story, sparked by the recent death of former Gitmo detainee and Al Qaeda commander Abdullah Mehsud in Pakistan would seem to belie that contention.
The second item worth noting is Review & Outlook from today’s Wall Street Journal, dealing with the strife between the President and the members of the Democratically controlled Congress regarding the use of warrant-less wire tapping and the FISA courts.
By way of background, the FISA courts, were set up as a part of the Foreign Intelligence Services Act of 1978 that segregated foreign surveillance under the aegis of the CIA from domestic surveillance under the aegis of the FBI. FISA severely limited the amount of intelligence that could be shared between these two branches and it also set up a system of judges that would approve or deny things like wire-tapping and the sharing of information. The act derived from the Sen. Frank Church hearings during the Watergate scandal, but it application went far beyond its original scope and hamstrung our intelligence capabilities.
If there is any one act singularly responsible for our intelligence services’ failure to “connect the dots” to 9/11 the FISA Act is it. Why? Because the act created an arbitrary and artificial division between foreign and domestic surveillance that terrorists are all too happy to exploit and that our lumbering legal system is not lithe enough to address. Under the current system, should a terrorist cross from foreign jurisdiction to American soil, the CIA must execute a handoff in surveillance to its domestic counterpart, the FBI. The problem is, such hand-offs in the past have resulted in the loss of suspects. A handoff can only be made if a FISA judge approves it, and such judges are rarely ready at the end of a phone when terrorists cross jurisdictions.
What’s more, the arbitrary nature of this division is making itself felt more acutely in this telecom age. As the WSJ piece notes, many calls between terrorists abroad are routed through the US, and though ostensibly they are foreign-to-foreign calls and therefore under the aegis of the CIA, the mere fact that they pass through a US switchboard makes them “domestic” calls, and therefore subject to FISA protracted approval. What should be a U.S. technology advantage in the war on terror—that many international calls come through U.S. switches—is now a liability. Once again, the lumbering nature of our legal system was never meant to keep up with a threat that moves at the speed of light through fiber-optic cables.
It’s time we did away with this arbitrary division. Following 9/11 President Bush and the Congress created the National Counterterrorism Center (NCTC), which is meant to connect the dots in the kinds of cases I have described. But too often, it fails to act promptly enough.
The troubling trend among the Liberal Left is their reticence to move to redress these issues. I won’t impugn their patriotism, but I will impugn their attitude that terrorism is mainly a law enforcement matter. The disposition to see the captives of Gitmo as innocents, though most of them were caught on foreign battlefields engaged in combat with US forces, and to try to deal with them within our domestic courts, is a part of this mindset. But, so too is the refusal to address the changing nature of the terrorists use of technology against us. Both need to change.
We are paying for the mistakes in respect to Gitmo. But we could pay a much bigger price if our overly cautious handling of international phone traffic leads to a major intelligence failure—and if that, in turn, leads to another major attack on the U.S. homeland.