COME INTO MY PARLOR, SAID THE SPIDER....

The Wall Street Journal sums up the peril to American security that expanding FISA judicial review has done and will do to the USA if Congress has its way. I like the part where Sen. Pat Leahy chortles to AG Gonzales in his "strip-search 10 yr-old girls" warble: "if you need new laws, then come and tell us." Ditto for the scarcely less insincere Arlen "Scotch Law: Not Proven" Spector.

A little history might put light on this charade.

Bear in mind that CONGRESS ITSELF did a JOINT INQUIRY review in 2003 that made the following finding:

12. Finding: During the summer of 2001, when the Intelligence Community was bracing for an imminent al-Qa'ida attack, difficulties with FBI applications for Foreign Intelligence Surveillance Act (FISA) surveillance and the FISA process led to a diminished level of coverage of suspected al-Qa'ida operatives in the United States. The effect of these difficulties was compounded by the perception that spread among FBI personnel at Headquarters and the field offices that the FISA process was lengthy and fraught with peril.

"If not addressed, these weaknesses will continue to undercut U.S. counter terrorist efforts." [xvi]

That’s according to the REPORT OF THE JOINT INQUIRY INTO THE TERRORIST ATTACKS OF 9/11 by the House Permanent Select and Senate Select Intelligence Ctes, which had as its Democratic House Ranking Member none other than Nancy Pelosi! The House and Senate Select Committees on Intelligence spent a year on the JOINT INQUIRY and Pelosi signed it without a peep or a self-serving memo to the files a la Jay Rockefeller.

Thankfully, today the ranking Democrat House member is the sensible, responsible, emotionally balanced and politically honest Jane Harman, also of California.

Here is the sensible, balanced, and politically honest position of the Wall Street Journal:

Judging by Monday's hearing, Senators of both parties are still hoping to stage a Congressional raid on Presidential war powers. And they hope to do it not by accepting more responsibility themselves but by handing more power to unelected judges to do the job for them.

The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War. "If you believe you need new laws, then come and tell us," Senate Democrat Pat Leahy told Attorney General Alberto Gonzales during Monday's hearing. Chairman Arlen Specter and Members in both parties seemed to be saying, "We're from Congress and we're here to help you."

But note well that the Members aren't talking about sharing responsibility themselves for wiretap decisions. That they want no part of. The leadership and Intelligence Committee chairs were already briefed numerous times on the NSA program, only to have several of them deny all responsibility when the story was leaked. Intelligence Vice Chairman Senator Jay Rockefeller (D., W.Va.) even wrote his own not-my-fault letter that he kept secret until the story broke, when he released it in order to embarrass the Bush Administration. The real message of this episode is: "We're from Congress and we're here to second-guess you."

What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.

As a practical war-fighting matter, this interferes with the ability to gather intelligence against anonymous, al Qaeda-linked phone numbers. FISA warrants apply to people, and are supposed to require "probable cause" that the subject is an agent of a foreign power. But as Mr. Gonzales and Deputy National Intelligence Director Michael Hayden explained Monday, in fast-moving anti-terror operations it's often impossible to know if someone on the U.S. end of an al Qaeda phone call is actually an "agent." That means the government must operate on a different "reasonable basis" standard.

FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. "We can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time," as Mr. Gonzales put it.

We already know FISA impeded intelligence gathering before 9/11. It was the reason FBI agents decided not to tap the computer of alleged 20th hijacker Zacarias Moussaoui. And it contributed to the NSA's decision not to listen to foreign calls to actual hijacker Khalid al-Midhar, despite knowing that an al Qaeda associate by that name was in the country. The NSA feared being accused of "domestic spying."

Remember that the Clinton Administration had fetishized lawyers to the extent that Jamie Gorelick in the DoJ was strengthening firewalls between the CIA foreign and FBI domestic surveillance efforts and trying to make them higher.

Civil Liberties always trump American Security when the lawyers start to snuff for truffles.

As the Able Danger episode demonstrated, lawyers even had the Pentagon jumping through legal hoops to the extent that effective counterintelligence efforts were paralyzed or shut down.

A quick review of the operative language of the finding above: "The effect of these difficulties was compounded by the perception that spread among FBI personnel at Headquarters and the field offices that the FISA process was lengthy and fraught with peril."

"If not addressed, these weaknesses will continue to undercut U.S. counter terrorist efforts."
Even after Congress admitted that FISA courts gummed up the process, Congress still wants to micro-manage even more.

535 Cooks make a horrible broth.