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<\/a>\nby ANDREW C. MCCARTHY<\/p>\n
The idea that FISA could be used against political enemies always seemed far-fetched. Now it might not be.<\/h2>\n<\/section>\n\nR<\/span>emember the great debate over \u201cthe Wall\u201d following the 9\/11 attacks? \u201cThe Wall\u201d was a set of internal guidelines that had been issued by the Clinton Justice Department in the mid 1990s. In a nutshell, the Wall made it legally difficult and practically impossible for agents in the FBI\u2019s Foreign Counter-Intelligence Division (essentially, our domestic-security service, now known as the National Security Division) to share intelligence with the criminal-investigation side of the FBI\u2019s house. Those of us who were critics of the Wall \u2014 and I was a strenuous one, beginning in my days as a terrorism prosecutor who personally experienced its suicidal applications \u2014 made several arguments against it.<\/p>\nMy favorite argument, which I have repeated countless times, centered on how preposterous were the underlying assumptions of the Wall. This was far easier for prosecutors than journalists, academics, and the public to grasp, because we dealt with the Justice Department\u2019s different chains of command for criminal and national-security investigations.<\/p>\n
The theory of the Clinton DOJ brass in imposing the Wall was the potential that a rogue criminal investigator, lacking sufficient evidence to obtain a traditional wiretap, would manufacture a national-security angle in order to get a wiretap under the 1978 Foreign Intelligence Surveillance Act (FISA). A traditional wiretap requires evidence amounting to probable cause of commission of a crime<\/em>. A FISA wiretap requires no showing of a crime, just evidence amounting to probable cause that the target of the wiretap is an agent of a foreign power<\/em>. (A foreign power can be another country or a foreign terrorist organization.)<\/p>\nThe reason the Wall theory was absurd was that a rogue agent would surely manufacture evidence of a crime before he\u2019d manufacture a national-security angle. The process of getting a traditional wiretap is straightforward: FBI crim-div agents and a district assistant U.S. attorney (AUSA) write the supporting affidavit; it gets approved by the AUSA\u2019s supervisors; then it is submitted to the Justice Department\u2019s electronic-surveillance unit; after that unit\u2019s approval, the attorney general\u2019s designee signs off; then the AUSA and the FBI present the application to a district judge. FISA wiretaps, by contrast, go through a completely different, more difficult and remote chain of command. In it, the district AUSA and FBI crim-div agents who started the investigation get cut out of the process, which is taken over by Main Justice\u2019s National Security Division and the FBI\u2019s national-security agents. In other words, if we assume an agent is inclined to be a rogue, it would be far easier (and less likely of detection) to trump up evidence of a crime<\/em> in order to satisfy the probable-cause standard for a traditional wiretap than to manufacture a national-security threat<\/em> in order to get a FISA wiretap. No rational rogue would do it.<\/p>\n
R<\/span>emember the great debate over \u201cthe Wall\u201d following the 9\/11 attacks? \u201cThe Wall\u201d was a set of internal guidelines that had been issued by the Clinton Justice Department in the mid 1990s. In a nutshell, the Wall made it legally difficult and practically impossible for agents in the FBI\u2019s Foreign Counter-Intelligence Division (essentially, our domestic-security service, now known as the National Security Division) to share intelligence with the criminal-investigation side of the FBI\u2019s house. Those of us who were critics of the Wall \u2014 and I was a strenuous one, beginning in my days as a terrorism prosecutor who personally experienced its suicidal applications \u2014 made several arguments against it.<\/p>\n My favorite argument, which I have repeated countless times, centered on how preposterous were the underlying assumptions of the Wall. This was far easier for prosecutors than journalists, academics, and the public to grasp, because we dealt with the Justice Department\u2019s different chains of command for criminal and national-security investigations.<\/p>\n The theory of the Clinton DOJ brass in imposing the Wall was the potential that a rogue criminal investigator, lacking sufficient evidence to obtain a traditional wiretap, would manufacture a national-security angle in order to get a wiretap under the 1978 Foreign Intelligence Surveillance Act (FISA). A traditional wiretap requires evidence amounting to probable cause of commission of a crime<\/em>. A FISA wiretap requires no showing of a crime, just evidence amounting to probable cause that the target of the wiretap is an agent of a foreign power<\/em>. (A foreign power can be another country or a foreign terrorist organization.)<\/p>\n The reason the Wall theory was absurd was that a rogue agent would surely manufacture evidence of a crime before he\u2019d manufacture a national-security angle. The process of getting a traditional wiretap is straightforward: FBI crim-div agents and a district assistant U.S. attorney (AUSA) write the supporting affidavit; it gets approved by the AUSA\u2019s supervisors; then it is submitted to the Justice Department\u2019s electronic-surveillance unit; after that unit\u2019s approval, the attorney general\u2019s designee signs off; then the AUSA and the FBI present the application to a district judge. FISA wiretaps, by contrast, go through a completely different, more difficult and remote chain of command. In it, the district AUSA and FBI crim-div agents who started the investigation get cut out of the process, which is taken over by Main Justice\u2019s National Security Division and the FBI\u2019s national-security agents. In other words, if we assume an agent is inclined to be a rogue, it would be far easier (and less likely of detection) to trump up evidence of a crime<\/em> in order to satisfy the probable-cause standard for a traditional wiretap than to manufacture a national-security threat<\/em> in order to get a FISA wiretap. No rational rogue would do it.<\/p>\n