Let’s Move Intelligence Out of the 1970s

01 Dic Let’s Move Intelligence Out of the 1970s

Wall Street Journal, By L. GORDON CROVITZ, December 1, 2008
 
The attacks last week in Mumbai and the heightened warnings during the holiday season for the New York City transportation system are reminders that terrorist threats remain. At a time when terrorists are fully up to speed — in Mumbai they used BlackBerrys to communicate — our efforts to prevent terrorism are still in an analog-era time warp. Despite some intelligence reforms after 9/11, those charged with preventing terrorism in the U.S. are still not confident they have the means to prevent another domestic attack. The Obama team, which credits technology for its electoral win, should focus on getting the executive branch the up-to-date tools it needs to prevent terrorism, while protecting reasonable levels of privacy. In a spectacular example of how Washington’s political compromises on intelligence look better on paper than they work in practice, New York City Police Commissioner Ray Kelly recently accused the Bush Justice Department of “doing less than it is lawfully entitled to do to protect New York City, and the city is less safe as a result.” Mr. Kelly complained in a letter to Attorney General Michael Mukasey about the arcane legal hoops of the Foreign Intelligence Surveillance Act. This law, passed in 1978, created a special court to approve domestic surveillance. He accused the Justice Department of deciding against seeking permission for needed wiretaps out of too much worry about being turned down. He said Justice Department lawyers want “higher than appropriate standards of probable cause” before sending requests to the FISA judges. Mr. Mukasey’s response, in an exchange of letters in late October that were recently leaked to the media, is that it’s better to send only very strong cases to the judges. The attorney general said that although New York City’s preferred approach “may lead to additional collection in the short term from the small percentage of applications that might be approved,” over time the “government’s credibility would be substantially undermined.” Mr. Mukasey didn’t put it this way, but these judges need to all but rubberstamp Justice Department requests because FISA puts them way out of their league. The judicial skill set will never include weighing intelligence risks or leveraging new technologies. Of some 2,300 requests to listen in on people within the U.S. last year, only three were denied. So tactically, Mr. Mukasey has a good argument. The broader question is whether there’s a privacy-protecting alternative to law-enforcement officials’ bickering over how to fit today’s technology needs into yesterday’s legal process. It took Nixon to go toChina and a Bush administration attorney general to deny New York City’s wiretap requests, so perhaps a Democratic administration can prompt a new national debate about privacy versus security: Can we get the most of both by encouraging the use of modern technology?