A Zeal to Defend Secrecy

Saturday, December 24, 2005

In their zeal to defend President Bush for ordering the National Security Agency to eavesdrop on communications of American citizens, William Kristol and Gary Schmitt got key things wrong regarding the FBI's terrorism investigation of Zacarias Moussaoui ["Vital Presidential Power," op-ed, Dec. 20].

They are wrong about Moussaoui being a "U.S. person" who required a higher standard of probable cause under the Foreign Intelligence Surveillance Act (FISA). Moussaoui was a French citizen in the United States with an expired temporary visa, which means that the higher FISA standard did not apply.

More important, and contrary to Kristol and Schmitt's assertion that "the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files," no evidence of Moussaoui's suspicious flight training and ties with terrorism was presented to the Justice Department. The department was never contacted and so did not decide anything; therefore, no decision was ever made regarding the given evidence and its subsequent application to FISA standards.

That means the FISA procedures were not the reason the FBI failed to inspect Moussaoui's computer files. Rather, the FBI's failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation.

-- Coleen Rowley

Apple Valley, Minn.

The writer is a retired FBI agent who testified before the Senate Judiciary Committee in 2002 about the problems the FBI faces in investigating terrorists.

For years conservatives have argued that liberals have modified the Constitution without formally amending it. The line goes that Democrats have taken advantage of the general-welfare and commerce clauses to pass just about anything they want; they see no limit regarding what the federal government can do.

Now the Republicans play the same game and may have taken it to a new level. William Kristol and Gary Schmitt stated, "Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's 'inherent authority' under the Constitution to acquire necessary intelligence for national security purposes."

The Constitution enumerates delineated powers. That used to be the mantra of the right. As President Bush stampedes over the individual rights for which our Founders fought, I guess it's just not a convenient thing to say.

-- Mark S. Lerner

Reston

"[T]he issue . . . [is] whether the executive branch is going to uphold the law or subvert it." William Kristol and David Brooks wrote these words in the Weekly Standard about the Clinton-Gore administration in the run-up to the 2000 election -- words that ring ever truer given the revelation about the NSA's eavesdropping.

This week Kristol and Gary Schmitt wrote, "Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't."

This is a specious argument: Congress does not have the ability to judge a program kept secret from it and the rest of the country.

"Bush seems to have behaved as one would expect and want a president to behave," Kristol and Schmitt continued. Wrong again: I expect a president to obey the law, and to be impeached if he does not.

-- Tom Orange

Washington

Do William Kristol and Gary Schmitt think we're all stupid? They equated a pre-Sept. 11 request for surveillance of Zacarias Moussaoui with a post-Sept. 11 request for wiretapping the cell phone numbers found in a hypothetical al Qaeda operative's cell phone. They argued that since a request to surveil Moussaoui was turned down before Sept. 11, it was plausible that today's attempts to conduct prudent counterterrorism would be defeated in the special court.

The government failed miserably to anticipate the terrorist attacks of 2001. It is absurd and dangerous to advance this argument to allow the president dictatorial powers now. Once again, the right is using Sept. 11 to justify a campaign of terror against the Constitution.

-- Kerry M. Gubits

Littleton, Colo.

William Kristol and Gary Schmitt, not unlike President Bush, left out important information about the Foreign Intelligence Surveillance Act: The government is almost assured a warrant to acquire information from a supposed threat, and those seeking it are allowed to begin their investigation before they file and have 72 hours to file after doing so.

Much of what has been reported in your paper contradicts the information that these authors have manipulated, distorted and discounted.

No one person or agency, president or not, has or should be given absolute power. Didn't we invade Iraq to free its citizens from a ruler with absolute control?

-- P. Michael Mastrofrancesco

Washington

So: Someone at John D. Ashcroft's Justice Department decided not to seek a FISA warrant to allow the inspection of Zacarias Moussaoui's laptop; therefore, FISA is null and void.

It strains credulity that this is the best that William Kristol and Gary Schmitt, writing on the administration's behalf, can do.

-- Ken Bronfenbrenner

New York