Now We Know
Feingold's got it all backward.


Wisconsin Senator Russell Feingold has introduced a resolution to censure President Bush for violating the provisions of the Foreign Intelligence Security Act by authorizing warrantless eavesdropping on calls from suspected terrorists outside the United States to persons inside the country. The 1978 law requires a warrant from a special FISA court in order to do domestic wiretapping. To date, Tom Harkin of Iowa and Barbara Boxer of California are the only Democratic senators to embrace Feingold’s effort. But others, including Ted Kennedy, have not ruled out supporting such a bill if it comes to a Senate vote.

Whether a president, during wartime, has the right to sidestep the FISA requirement is a knotty constitutional question. (Abraham Lincoln, remember, utilized his war powers to suspend habeas corpus during the Civil War.) The more basic question, however, is why Bush thought it necessary since FISA judges supposedly rubber stamp all such warrant requests.

The sentencing phase of the trial of convicted terrorist Zacarias Moussaoui has provided a partial answer to that question. It turns out Harry Samit, the FBI field agent who arrested Moussaoui for immigration violations prior to the 9/11 attacks, sensed that Moussaoui was up to no good, even suspected he was involved in a plot to hijack airliners, and begged his supervisor to dig deeper into his activities and computer files. The supervisor refused, according to Samit, because FISA warrants had proven problematic for the Bureau in the past. Since, technically, Moussaoui’s immigration violations amounted to criminal wrongdoing, not terrorist subterfuge, requesting a foreign intelligence court warrant in this case was “just the kind of thing that would get FBI agents in trouble,” Samit alleges the supervisor told him.

In other words, the FISA court was not a rubber-stamp operation. If FISA judges sensed a blurring of the hard line between criminal and intelligence investigations, they might say no–and might thereafter look unkindly on whoever had made the request. That reality, apparently, had a chilling affect on the FBI’s efforts to get to the bottom of Moussaoui’s involvement in the conspiracy which brought down the Twin Towers and killed almost 3000 Americans.

Any wonder, then, that Bush authorized wiretapping without FISA warrants–and informed Congress he was doing so? Under the circumstances, if he’d failed to do so, that might have been grounds for censure.

Are you listening, Senator Feingold?

Mark Goldblatt is author of Africa Speaks, a satire of black urban culture.