Unintended Consequences

Was this intentional or just unforeseen?

The NSA program was set up shortly after September 11, 2001. The Justice Department issued an opinion that the program was legal, and authorized it to begin. Those authorizations continued for a period of years. The Republican and Democratic leaders of both the House and the Senate, and the senior members of the intelligence committees of both chambers, were aware of the program and approved of it.

Then, in late 2005, the New York Times, acting on information leaked from intelligence sources, exposed the program to al Qaeda and our other terrorist enemies. This changed the political calculus for the Democrats. They now saw an opportunity to use the program to attack the Bush administration, and did so. They took no responsibility for their former approval of the program, nor did they acknowledge that the program was consistent with multiple Federal Court decisions and had been certified as legal by the Department of Justice.

As a concession to the Democrats, the administration agreed, at the beginning of this year, to put the program under the jurisdiction of the FISA court. (Previously, the policy had been to obtain FISA orders when possible, but to rely on the President's constitutional authority to carry out warrantless surveillance for national security purposes where time constraints or other factors made it impractical to obtain such an order.) Today, the Wall Street Journal brings us up to date on what has been happening as a result:

This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror. To understand why, keep in mind that we live in a world of fiber optics and packet-switching. A wiretap today doesn't mean the FBI must install a bug on Abdul Terrorist's phone in Peshawar. Information now follows the path of least resistance, wherever that may lead. And because the U.S. has among the world's most efficient networks, hundreds of millions of foreign calls are routed through the U.S.

That's right: If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists. If this makes you furious, it gets worse.