A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do?
If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. . . . But the attorney general might have to tell the president he might well not be able to get that warrant. FISA requires the attorney general to convince the panel that there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist. Yet where is the evidence to support such a finding? Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists.The hypothetical attorney general to this hypothetical president is a hypothetical idiot. Remember, this "24"-esque scenario is playing out in the post-9/11 world. Is there any question that the FISA court would approve tapping those phone lines? As Jonathan Alter explains, the threshold for obtaining a FISA wiretap is very low, and the application can even be filed after the tapping has begun. (If I didn't know better, I'd say that congress designed FISA to be an effective tool for national security.) Back to Kristol:
Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11.Wait a second. Kristol wants us to get all frothy about this hypothetical post-9/11 security scare, and his real-world parallel is from pre-9/11? That don't work, buddy. Kristol goes on to do more time flip-flopping and suggests that if federal agents had felt empowered to spy on Moussaoui they might have prevented 9/11.
Once again, a conservative criticizes the government for having a pre-9/11 mindset when it was, uh, pre-9/11.