More Surveillance, More Often

With his signature on Sunday, President Bush expanded the government's surveillance capabilities. A former CIA officer critiques the White House’s justification of the expansions.

During his July 28 radio address, President George W. Bush's reference to the recent National Intelligence Estimate (NIE) was little more than a circular argument designed to reach a preordained conclusion. The NIE's judgments on the state of Al-Qaeda and the threat it poses to the U.S. homeland are by no means universally accepted, though one hopes that the classified version makes some attempt to place its more dubious findings in context. Nonetheless, President Bush cited the NIE's findings on Al-Qaeda in urging Congress to "modernize" the Foreign Intelligence Surveillance Act (FISA) structure to permit U.S. intelligence agencies to monitor more communications by terrorists, including the internet and "disposable cell phones."

Bush claimed that the NIE confirmed that Al-Qaeda was using its presence in the Middle East-read Iraq-to communicate with its supporters and plot new attacks against the United States. But there is no consensus view in intelligence circles that Al-Qaeda in Pakistan is attempting to exploit its affiliate in Iraq to carry out strikes on the U.S. homeland, as the White House asserts. The NIE does not even say that, suggesting instead that Al-Qaeda might be trying to "leverage" its namesake in Iraq in an attempt to obtain recruits and money. The NIE's judgments about Al-Qaeda in Iraq are questionable, delegitimizing the president's advocacy of FISA reform.

No one could possibly object to intercepting terrorist communications, but there is a logical inconsistency in the FISA reform proposal and the evidence cited by President Bush to support it. The threat is described as "plotting" in the Middle East-again, read Iraq, which the White House has frequently described as the epicenter for the "Global War on Terror." But the assertion that Al-Qaeda in Iraq is a genuine danger to the United States is lacking in credibility and is little more than an administration attempt to create a straw man enemy where none really exists to bolster support for increasingly unpopular policies.

Most terrorism experts believe that Al-Qaeda in Iraq is not controlled by Osama bin Laden, that its operational agenda is focused on Iraq itself, and that it has no capability or desire to export its insurgency. It is undeniably convenient for the administration to imply that Al-Qaeda in Iraq is interchangeable with Al-Qaeda in Pakistan because that becomes, ipso facto, a justification for sustaining the surge.

On the domestic front, FISA only relates to communications involving U.S. residents. The president is clearly seeking open-ended authority to intercept communications without any due process, and he apparently intends to do so in the United States, not in Iraq and its neighboring countries where he already has that ability.

Whether America's intelligence and security services are even demanding more freedom to tap phones and other communications to thwart terrorist attacks is unclear, but there is no evidence to suggest that any terrorist success anywhere has resulted from a lack of investigative tools in the hands of the authorities. It is possible that a case can be made for a change in the current policy, but the White House and its supporters in Congress have not made that case.

House Republican leader John Boehner (OH), citing 9/11, has described the White House proposal as a necessary step to "break down bureaucratic impediments to intelligence collection and analysis." It is not at all clear how unlimited access to currently protected personal information that is already accessible through an oversight procedure would do that. "Modernizing" FISA would enable the government to operate without any restraint. Is that what Boehner actually means?

It is not as if FISA is much of an impediment anyway. Administration assertions to the contrary, FISA, as currently constituted, already permits full access to suspected terrorist communications. The requests to initiate a teltap or other intrusion are almost always approved and they can be implemented on an ad hoc basis by law enforcement even without a formal ruling. The FISA court itself consists of judges who are widely considered to be automatically inclined to accept the government case, not to deny it on constitutional or probable cause grounds. Critics of the proposed changes note that the White House will apparently seek to grant telecommunications companies-hitherto reluctant to turn over their records or permit electronic intrusion into their networks without a court order-blanket immunity from criminal prosecution or civil liability. If that is so and the attempt to change the law is successful, it will mean that the government will be empowered to obtain the communications of any American at any time without any process involved to protect individual rights.

Philip Giraldi, a former CIA officer, is the Francis Walsingham Fellow for the American Conservative Defense Alliance.