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One of the huge challenges when it comes to gathering intelligence is balancing national security issues with the protection of human rights: In other words, providing for the common defense vs. human freedom. There is always tension! Recently, the US government arrested Najibullah Zazi and charged him with a plot to bomb New York subways. This was a credible and real threat. What are the intelligence-gathering tools that protect this nation? The case of Zazi confirms that the tools provided by the Foreign Intelligence Surveillance Act are valid and effective. However, there are some in Congress who desire to make it difficult to gather, use and protect intelligence. Those forces are generally attacking the Patriot Act, enacted after 9/11. Many provisions of this law will expire unless Congress renews them. Some in Congress want to impose requirements that would diminish their effectiveness or add burdens to existing authorizations that would retard rather than advance our ability to gather intelligence. As Michael Mukasey, attorney general of the US from 2007 to 2009, has argued, the Patriot Act “permits investigators to maintain surveillance of sophisticated terrorists who change cell phones frequently to evade detection. This kind of surveillance is known as ‘roving wiretaps.’” Also up for renewal this year are authorizations to seek court orders to examine business records in national security investigations, and to conduct national security investigations when investigators cannot prove a particular target is connected to a particular terrorist organization or foreign power—know as “lone wolf” authority. How valuable are these tools?
- First, the roving wiretaps have been utilized for decades by law enforcement in routine narcotics cases. Mukasey reports that they were used to thwart a plot to blow up a synagogue in Riverdale, NY.
- Second, the value of lone wolf authority is best demonstrated by its absence in the summer of 2001. That is when FBI agents might have obtained a warrant to search the computer of Zacharias Moussaoui before the 9/11 attacks.
The changes being considered in Congress in terms of The Patriot Act may sound benign, but they “turn the concept of an investigation on its head, requiring the government to submit proof at the outset of an investigation while facts are still being sought.” Other proposals would ban the use of tools to gather information about local or long-distance calls, financial transactions or information from credit reports. However, as Mukasey reports, “This is precisely the kind of information that would be useful to an investigator trying to find out who a terrorist is calling or how much money he is receiving from overseas.” What is ludicrous about this situation currently in the Congress is that Congress has already given such authority to the FBI in cases involving crimes against children. The Drug Enforcement Administration has such authority in drug cases. Why would Congress not grant the same authority to investigators in matters of national security?
This is the whole point of the Zazi case. The tools of The Patriot Act averted a terrorist plot that would have been a catastrophe. In addition, other terrorist cells have been discovered and broken up in New York, Virginia, North Carolina, Oregon, Texas and Ohio.
Mukasey correctly observes that “those who indulge in paranoid fantasies of government investigators snooping on the books they take out of the library, and who would roll back current authorities in the name of protecting civil liberties, should consider what legislation will be proposed and passed if the next Najibullah Zazi is not detected.” Our nation has always struggled with how to balance security and human liberty. There is always tension and controversy. But we are in a war on terror, whether our president wants to use that term or not. And that War involves the needs of intelligence gathering that saves American lives. We live in a fallen world. That fallen world means that terrorism will thrive—and it will thrive in nations where there is not vigilance and the proactive gathering of intelligence information. May the current Congress maintain the authority of the Patriot Act, which gives our security forces the power and authority to use the tools the DEA and FBI have in crimes against children and in drug cases. It makes no sense to deny our intelligence gathering agencies the same authority when it comes to cases of national security against terrorists.
See Mukasey’s most helpful article in the Wall Street Journal (2 October 2009). |
