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Eavesdropping on terrorists

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POSTED: September 6, 2007 5:03 a.m.
Little did they know it, but terrorist suspects living in Pakistan recently had their rights to privacy enhanced. It happened through the magic of adventurous judicial interpretation of an outdated U.S. law.
Back in 1978, when disco was king and no one owned a cellular telephone, Congress passed the Foreign Intelligence Surveillance Act. It sought to constrain the president’s power to monitor communications for intelligence purposes here in the U.S. by requiring him to get a warrant from a special FISA court. The court would have to be convinced that there was probable cause to believe that a target of surveillance was an “agent of a foreign power.”
Congress didn’t mean to include overseas communications under the law. So “wire” communications came under the law’s purview, but not most “radio” intercepts, since chatter abroad was picked up by satellites. But the law’s drafters weren’t clairvoyants. They presumably didn’t foresee the decline of disco (let alone the demise of the 8-track tape and the LP) or, much more importantly, the telecommunications revolution that gave us fiber optics and packet switching. Now two people can be talking overseas — say, from Afghanistan to Pakistan — and their communication could travel in a packet of digital data through U.S. networks, where it can be conveniently surveilled.
At least in theory. The FISA court recently ruled that these entirely foreign-to-foreign communications also require a warrant.
It won’t always be possible to meet the probable-cause standard on overseas targets. Information on them might be third- or fourthhand. Even if we have the goods, getting a warrant can take days and requires filing an application two or three inches thick. Speed is of the essence, because terrorists quickly discard phones after using them, and we need to act on numbers found on killed or captured terrorists before their contacts realize they’ve been compromised.
According to USA Today, the administration lost crucial hours getting emergency warrants to monitor communications we thought could lead to the Iraqi insurgents who kidnapped three American soldiers back in May. That our intelligence agencies have to worry about warrants at all in a combat setting is testament to the mind-boggling absurdity of the FISA regime.
Over the objections of most Democrats, Congress has passed and President Bush has signed a temporary fix to this mess (it expires in six months). Foreign-to-foreign intercepts won’t require a warrant.
One of the Democratic alternatives to the FISA fix proposed simply hiring more lawyers for U.S. intelligence. Democrats have criticized President Bush’s call to spread liberty abroad as naive overreach, but it is positively hardheaded compared with the Democrats’ campaign to spread U.S. constitutional rights to foreigners suspected of terrorist ties. Those rights are meant for people living under and accepting our government, and bestowing them on foreign enemies of the United States only hampers our ability to fight the war they have forced on us.
Those terrorist suspects in Pakistan have no privacy rights we are bound to respect.

Lowry is editor of the National Review.
 

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