October 27, 2007 | Commentary on Department of Homeland Security

Will Congress Permanently Close Scary Intelligence Gap?

"Showing apparent signs of concern over events in Iraq," ABC News reported last week, Osama bin Laden warned his terrorist comrades that: "Your enemies are trying to break up the jihadi groups." He implored them to "work in one united group."

That's good advice for our side. Yet House leaders at that time were pressing ahead with legislation that would dramatically hamper the ability of U.S. field commanders and intelligence officers to win the war in Iraq.

It's a troubling move toward a time-consuming legalistic regime that would force military and intelligence leaders to cede some of their decision-making authority to government lawyers and federal judges.

To see such legal restrictions in action, consider a tragedy that occurred earlier this year. The New York Post reports that similar obstacles forced U.S. military commanders to delay a search-and-rescue mission for three U.S. servicemen taken hostage by terrorists last May.

According to a timeline that Admiral Mike McConnell, the director of National Intelligence, provided to Congress, lawyers for the National Security Agency determined that special approval from the Attorney General would be required before terrorist communications could be monitored. Then, as the Post reported: "For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the 'probable cause' necessary for the Attorney General to grant such 'emergency' permission." Finally, the lawyers blessed the surveillance the military commanders requested.

It was too late: The soldiers had been executed. No one knows whether this particular intelligence gap led to their deaths. But it certainly didn't help.

The intelligence gap at issue apparently arose when a special federal court charged with reviewing matters involving national security secretly interpreted the Federal Intelligence Surveillance Act (FISA) to require a warrant for any electronic surveillance of persons outside the U.S. if their electronic communications might be routed through the U.S.

Previously, the definition of "electronic surveillance" in FISA allowed intelligence officials to differentiate between surveillance of persons located outside the U.S. -- for which no FISA warrant is required -- and domestic surveillance.

But, due to technological changes, even purely foreign-to-foreign communications now go through the U.S. Thus, though the law remained unchanged, the previous distinction between overseas and domestic surveillance no longer applied. McConnell estimates that, thanks to the intelligence gap, we lost somewhere between one-half and two-thirds of the foreign intelligence information which would otherwise have been collected.

Thankfully, in August, a reluctant Congress temporarily closed this intelligence gap. For now, intelligence officers can monitor foreign targets overseas without a court order and without fear of prosecution.

Nevertheless, liberals fulminated. "We were stampeded," senior House Judiciary Committee member Rep. Jerrold Nadler (D-N.Y.) charged, "by administration fear-mongering and deception into signing away our rights."

Not surprisingly, the legislation Nadler championed would limit the type of foreign intelligence that may be acquired without court approval. As White House officials note, it would impose "additional, wide-ranging, burdensome oversight requirements" on intelligence analysts. Trained linguists and analysts are already hard to come by; this approach would force them through endless legal hoops. Federal judges would be charged with making "operational determinations" best left to field commanders. Because no intelligence may be collected while appeals are pending, their decisions would be all but final.

The ramifications were spelled in a frightening floor exchange between Reps. Heather Wilson (R-N.M.) and Dan Lungren (R-Calif.):

Wilson: "If the United States Government inadvertently collects a phone call [where] Osama bin Laden himself calls into the United States, and ... we didn't expect him to call in to America, and we get lucky and we pick it up, and that phone call says to one of his cells in the United States, 'Tomorrow is the day. Blow up the Sears Tower in Chicago,' is it my understanding that under this bill ... the intelligence agents couldn't even tell law enforcement about that?"

Lungren: "Unless that cell had already been identified by us, we knew who they were, [and] we had already gotten legal permission to do that, we wouldn't be able to do that."
Wilson's hypothetical example shouldn't be dismissed. My colleague James Carafano has listed the 16 known terrorist plots, involving 57 admitted and accused terrorists, that have been thwarted since Sept. 11. At least a dozen of them seem to have an international connection that could have involved intercepted international communications. Some, such as the terrorist cell arrested in August 2004 for plotting to use a radiological "dirty bomb" to unleash a "memorable black day of terror" against leading financial targets, could have killed thousands.

This prompts a good question from Rep. Rodney Frelinghuysen (R-N.J.). "Why are we on the floor debating ... legislation that essentially amounts to unilateral disarmament on our part?"

Michael Franc is vice president of government relations for The Heritage Foundation (heritage.org).

About the Author

Michael Franc Distinguished Fellow
Government Studies

First appeared in RealClearPolitics