- The Washington Times - Friday, May 24, 2002

Watching the Democrat congressional leadership demagoguing September 11 and blaming President Bush for lack of attention to intelligence information prior to the attack, should remind us of who was responsible for preventing our intelligence agencies from doing their job.

Before September 11, our government received three significant pieces of intelligence. On July 10, the FBI's Phoenix, Ariz., office warned headquarters that large numbers of Middle Eastern students were attending flight schools and might be a future terrorist threat. It was suggested that the FBI get their names and check them out. On Aug. 6, CIA briefed the president and listed hijacking as one of the methods that could be used by Osama bin Laden's terrorist group. At this point, there was no hard information that the government could use to prevent the terrorist attack.

On Aug. 17, the FBI in Minnesota arrested Zacarias Moussaoui on immigration charges after he told a flight school that he wanted to fly a jetliner but was not interested in take off or landing. Now the FBI had something. They seized Moussaoui's computer and asked FBI headquarters for a warrant under the Foreign Intelligence Surveillance Act (FISA) to download it and tap his phone. They were turned down because FISA requires that to obtain a warrant they must show the court "sufficient specific and articulable facts to indicate that the individual's activities are in preparation for sabotage or international terrorism."

In addition, they had to show that his activities may involve a violation of law. Common-sense suspicion of what Moussaoui intended to do was not enough. If they had downloaded his computer, they might have known that New York was a target, as he was studying the air currents over the city. If his friends, who didn't know about his arrest, phoned him, the FBI might have been led to the other 19 hijackers.

The responsibility for this failure goes back to the late 1970s and the aftermath of the Church Committee (Senate) and Pike Committee (House) hysteria against the intelligence agencies. That was when FISA was passed. The prime movers were Edward Kennedy and Birch Bayh (chairmen of the Senate Judiciary and Intelligence Committees) and Peter Rodino and Edward Boland (the chairmen of the House Judiciary and Intelligence Committees) and their staffs. In the late 1970s, I was a professional staff member of the House Intelligence Committee. My Democrat colleagues, the committee's chief counsel, Michael J. O'Neil and counsel Bernard Raimo Jr., worked with leftist special interest groups, like the American Civil Liberties Union and the Center for National Security Studies, to raise the barriers to make the job of our intelligence agencies more difficult.

In 1978, Mr. Kennedy explained to the House Intelligence Committee how he and Mr. Bayh worked together to "place some meaningful statutory restrictions" on electronic surveillance. One of these, he explained, was to make sure that a warrant could only be issued if it could be shown that a crime might be committed. He was challenged at the hearing by the late Rep. John Ashbrook, Ohio Republican. Mr. Ashbrook pointed specifically to the FALN terrorist group that was then planting bombs in New York. Mr. Kennedy brushed it off. A few conservative Republicans led by John Ashbrook fought an unsuccessful rear guard action against the liberal Democrat majority in Congress.

There has been much talk in the press for the past few days complaining that the FBI and CIA do not exchange information. Of course they do not. Those restrictions were put in after the Church-Pike hysteria, and were, of course, reflected in FISA, which includes a provision that no information obtained in a wiretap "shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advanced authorization of the attorney general." This would prevent sharing FBI information even with other parts of the FBI.

If the person under suspicion is planning a terrorist action, the wiretap warrant could not be obtained if the information about this was derived "solely upon the basis of activity protected by the First Amendment to the Constitution." So if someone uses his free speech protection to advocate terrorism, he can't be wiretapped to prevent him from carrying out the threat.

This brings us to the U.S.A. Patriot Act passed by Congress after September 11. You would hope that these defects might be fixed. Some others were, but not those we are talking about in this article. The Patriot Act, like FISA, requires that a crime has been or is about to be committed before a terrorist's phone can be tapped. The new law also requires "evidence of a criminal offense" and says the wiretap cannot be obtained "solely upon the basis of activities protected by the First Amendment." Derived from FISA, the Patriot Act repeats this phrase over and over again. The First Amendment protects us from the government preventing our freedom of speech.

If we choose to exercise it in such a way that we tell the government that we intend to commit terrorist acts, the government should watch us, and even wiretap us. If a police officer stops a speeding car and sees a bumper sticker with a marijuana leaf, he would be a pretty stupid policeman if didn't sniff the air and look into the open ashtray for handmade cigarette butts. The driver has the constitutional right to his bumper sticker, but if it tells the policeman what the driver intends to do, the policeman should not ignore it.

Even the section of the Patriot Act that bars supporters of foreign terrorist organizations from getting visas to the United States makes an exception for supporters of the Irish Republican Army and the African National Congress. Some terrorists groups are more equal than others, despite the fact that terrorists from all over the world have worked with each other since they were brought together decades ago by the KGB. The pre-September 11 arrest of three IRA trainers in Colombia, working with the narco-terrorist FARC, should surprise nobody. The IRA terrorists were based in Havana. The FARC was established by the Communist Party of Colombia with the help of Cuba's Castro dictatorship. Fidel Castro continues to give support to some who in the past were aided by the KGB.

Who succeeded in getting these pernicious elements into the Patriot Act? The ever-present Sen. Kennedy was particularly active. He was joined in the House by Rep. John Conyers, Michigan Democrat, long active in leftist causes. In Congress, the squeaky wheel gets greased. There are no more squeaky wheels in Congress than Mr. Kennedy and Mr. Conyers. The Republicans rolled over for them because the administration needed the bill passed even with its defects.

The Democratic leadership in Congress aided on occasion by foolish Republicans put in place the restrictions on our intelligence community. As Congress investigates the intelligence failure of September 11, they should take a close look at the role of their liberal colleagues who bear much of the blame.


Herbert Romerstein, a retired federal official, served as a professional staff member of the House Permanent Select Committee on Intelligence from 1978 to 1983.


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