Investigators wanted to study the contents of Moussaoui's
laptop computer, but the FBI bureaucracy involved in
applying for a FISA warrant was stifling, and there were
real questions about whether investigators could meet the
FISA court's probable-cause standard for granting a warrant.
FBI agents became so frustrated that they considered
flying Moussaoui to France, where his computer could be
examined. But then the attacks came, and it was too late.
Why Bush Approved the Wiretaps
Byron York
National Review Online
Not long ago, both parties agreed the FISA court was a problem.
In the days since the revelation that President Bush authorized the National Security Agency to bypass, in certain cases of suspected al Qaeda activity, the special court set up to provide warrants for national-security wiretaps, the question has come up repeatedly: Why did he do it?
At his news conference this morning, the president explained that he believed the U.S. government had to "be able to act fast" to intercept the "international communications of people with known links to al Qaeda." "Al Qaeda was not a conventional enemy," Bush said. "This new threat required us to think and act differently."
But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.
People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court.
"It takes days, sometimes weeks, to get the application
for FISA together," says one source. "It's not so much
that the court doesn't grant them quickly, it's that it
takes a long time to get to the court. Even after the
Patriot Act, it's still a very cumbersome process. It is
not built for speed, it is not built to be efficient. It
is built with an eye to keeping [investigators] in
check."
And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.
Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.
Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress.
"Rowley depicted the legal mechanism for security
warrants under the Foreign Intelligence Surveillance Act,
or FISA, as burdensome and restrictive, a virtual roadblock
to effective law enforcement," Legal Times reported in
September 2002.
The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.
"Many agents in the field told us that although there is
now less hesitancy in seeking approval for electronic
surveillance under the Foreign Intelligence Surveillance
Act, or FISA, the application process nonetheless continues
to be long and slow," the commission said. "Requests for
such approvals are overwhelming the ability of the system
to process them and to conduct the surveillance. The
Department of Justice and FBI are attempting to address
bottlenecks in the process."
It was in the context of such bureaucratic bottlenecks that the president first authorized, and then renewed, the program to bypass the FISA court in cases of international communications of people with known al Qaeda links.
There were other reasons for the president to act, as well.
In short, it appears that he was trying to shake the bureaucracy into action. The September 11 Commission report pointed to a deeply entrenched it's-not-my-job mentality within the National Security Agency that led the organization to shy away from aggressive antiterrorism surveillance.
"The law requires the NSA to not deliberately collect
data on U.S. citizens or on persons in the United States
without a warrant based on foreign intelligence
requirements,"
the 9/11 commission report wrote,
While the NSA had the technical capability to report on
communications with suspected terrorist facilities in the
Middle East, the NSA did not seek FISA Court warrants to
collect communications between individuals in the United
States and foreign countries, because it believed that this
was an FBI role. It also did not want to be viewed as
targeting persons in the United States and possibly
violating laws that governed NSA's collection of foreign
intelligence. An almost obsessive protection of sources
and methods by the NSA, and its focus on foreign intelligence,
and its avoidance of anything domestic would...be important
elements in the story of 9/11.
Bush's order, it appears, was an attempt to change that situation. Especially before, and even after, passage of the Patriot Act, the FISA bureaucracy and the agencies that dealt with it were too unwieldy to handle some fast-moving intelligence cases. And now, a group of 43 Democrats and four Republicans is trying to undo even those improvements brought by the Patriot Act; after the effort to renew the law was filibustered last week, Senate Minority Leader Harry Reid exulted, "We killed the Patriot Act." Put all those factors together, and they explain the president's impassioned argument that he has to act to keep the pressure on al Qaeda — especially at a time when others, for whatever reasons, are trying to stop him.
— Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They'll Try Even Harder Next Time.
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