Michael  Franc

“Showing apparent signs of concern over events in Iraq,” ABC News reported last week, Osama bin Laden warned his terrorist comrades that: “Your enemies are trying to break up the jihadi groups.” He implored them to “work in one united group.”

That’s good advice for our side. Yet House leaders at that time were pressing ahead with legislation that would dramatically hamper the ability of U.S. field commanders and intelligence officers to win the war in Iraq.

It’s a troubling move toward a time-consuming legalistic regime that would force military and intelligence leaders to cede some of their decision-making authority to government lawyers and federal judges.

To see such legal restrictions in action, consider a tragedy that occurred earlier this year. The New York Post reports that similar obstacles forced U.S. military commanders to delay a search-and-rescue mission for three U.S. servicemen taken hostage by terrorists last May.

According to a timeline that Admiral Mike McConnell, the director of National Intelligence, provided to Congress, lawyers for the National Security Agency determined that special approval from the Attorney General would be required before terrorist communications could be monitored. Then, as the Post reported: “For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the ‘probable cause’ necessary for the Attorney General to grant such ‘emergency’ permission.” Finally, the lawyers blessed the surveillance the military commanders requested.

It was too late: The soldiers had been executed. No one knows whether this particular intelligence gap led to their deaths. But it certainly didn’t help.

The intelligence gap at issue apparently arose when a special federal court charged with reviewing matters involving national security secretly interpreted the Federal Intelligence Surveillance Act (FISA) to require a warrant for any electronic surveillance of persons outside the U.S. if their electronic communications might be routed through the U.S.

Previously, the definition of “electronic surveillance” in FISA allowed intelligence officials to differentiate between surveillance of persons located outside the U.S. -- for which no FISA warrant is required -- and domestic surveillance.

But, due to technological changes, even purely foreign-to-foreign communications now go through the U.S. Thus, though the law remained unchanged, the previous distinction between overseas and domestic surveillance no longer applied. McConnell estimates that, thanks to the intelligence gap, we lost somewhere between one-half and two-thirds of the foreign intelligence information which would otherwise have been collected.

Michael Franc

A long-time veteran of Washington policymaking, Mike Franc oversees Heritage's outreach to members of the U.S. House and Senate and their staffs.

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