More US surveillance, more
often By Philip Giraldi
During a radio address last Saturday, US
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 US 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, Bush cited the NIE's findings
on al-Qaeda in urging Congress to "modernize" the
structure of the Foreign Intelligence Surveillance
Act (FISA) to permit US 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 US 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 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 "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 a Bush 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 Bush 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" of troops in Iraq.
On the domestic
front, FISA only relates to communications
involving US residents. Bush 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.
The US House of Representatives'
Republican leader, John Boehner, citing September
11, 2001, 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 wiretap
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, and 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 US 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 US
Central Intelligence Agency officer, is the
Francis Walsingham fellow for the American
Conservative Defense Alliance.
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