Wiretaps and the War on Terror - Lawyer Interference?

The Wall Street Journal reports on Ray Kelly's Wiretap Alarm subtitled, "New York's police chief v. the lawyers on antiterror warrants."

India's three days of carnage stand as another warning about how easily terrorists can perpetrate a major attack. So when top New York City counterterrorism officials declare that U.S. intelligence laws are shackling their powers to prevent the next Mumbai, it ought to raise more than eyebrows.

Instead, almost nobody seems to care. Seven years without an attack on the U.S. mainland has created a growing public complacency. And the anti-antiterror lobby has exploited that complacency to assail and constrain critical Bush Administration intelligence programs, making it harder to intercept terrorists before they strike. As a consequence innocent Americans may be killed.

It seems that it is not the so-called FISA Courts that are impeding the issuance of wiretaps, but U.S. Department of Justice lawyers who are so doing. In what is termed "an extraordinary exchange of letters," New York's police commissioner takes the U.S. Department of Justice to task for "'unduly constraining'" his high-priority "'international terrorism investigations in the greater New York area.'"

Mr. Kelly was furious and let Mr. Mukasey know it in a searing critique. Someone leaked the October correspondence late last month, and though each party blames the other, both have since walked back from public conflict. In any event, whoever leaked made his point. Mr. Kelly's letter exposed a "lack of urgency and excessive time lags" in processing FISA applications; as well as a bureaucracy that insists on "frequently long and unjustifiable delay," even "weeks of delay." This is disturbing enough given fast-moving terror plots.

Readers should know that it was Commissioner Kelly who addressed the threat of attacks on New York City's subways by directing his department to make bag and backpack searches at subway entrances in July 2005. New York Starts to Inspect Bags on the Subways. Although challenged, the searches were upheld.

The truth of the matter is that

"Most antiterror victories are invisible, and the best evidence of success -- being spared another attack on U.S. soil -- has the effect of increasing public skepticism about the seriousness of the threat. If the Mumbai terrorists had been rolled up beforehand on the evidence of a wiretap, to the extent that anyone noticed, the media response would have been to scoff at their haplessness and maybe something about "fear mongering."

Now nearly 170 people are dead. Ray Kelly is warning that it can still happen here, and that it is more likely to happen if we let lawyers make decisions that our chief security officials should make.