Where is the safest place in the world for Osama bin Laden to hide while continuing to direct the terrorist plots of al-Qaida? The United States.
If you think that's an exaggeration, consider what Gen. Michael Hayden, the former director of the National Security Agency, told the House Intelligence Committee in April 2000.
To illustrate the limitations imposed by the Foreign Intelligence Surveillance Act — passed by Congress in 1978 — Hayden cited a Saudi terror leader whose name was then not widely known: "If ... Osama bin Laden is walking across the peace bridge from Niagara Falls, Ontario, to Niagara Falls, New York, as he gets to the New York side, he is an American person and my agency must respect his rights against unreasonable search and seizure."
Hayden's testimony about FISA six years ago proved to be lethally prescient. When FBI agents in Minneapolis arrested a French-born man of Moroccan descent named Zacarias Moussaoui during the summer of 2001, the Justice Department declined to issue a FISA warrant to search his computer files.
Moussaoui had come to the attention of U.S. law enforcement due to a tip from French intelligence about his connection to Islamic terrorists, and for the curious fact that he expressed an interest to a Minnesota flight school in learning only how to fly a commercial airliner, not how to take off or land.
In 1999, the NSA began monitoring a cell phone number in Yemen that served as a switchboard for al-Qaida. Among the callers who connected to this switchboard was a "Khalid" in the United States. The NSA dropped surveillance of the caller for fear of violating FISA provisions on domestic spying. Khalid turned out to be Khalid al-Mihdhar, one of the 9-11 hijackers who took over American Airlines Flight 77 and flew it into the Pentagon.
Traveling overseas — for instance, to a terrorist conclave in Malaysia in 2000 — al-Mihdhar and fellow hijacker Nawaf al-Hazmi were under CIA surveillance. Back in the United States, however, FBI lawyers were reluctant to initiate a criminal investigation due to concerns about breaching the FISA wall between domestic and foreign intelligence.
Here's what the 9-11 commission had to say about FISA:
"The 'wall' between criminal and intelligence investigations apparently caused agents to be less aggressive than they might otherwise have been in pursuing Foreign Intelligence Surveillance Act (FISA) surveillance powers in counterterrorism investigations.
"Moreover, the FISA approval process involved multiple levels of review, which also discouraged agents from using such surveillance. Many agents also told us that the process for getting FISA packages approved at FBI headquarters and the Department of Justice was incredibly lengthy and inefficient."
The institutional aversion to FISA warrants may have lessened, the wall separating domestic and foreign intelligence may have been lowered since the fall of 2001. But a law crafted 28 years ago — before disposable cellular phones became as ubiquitous as bubble gum at convenience stores, before masked e-mails from anonymizing Web portals could even be conceived — is insufficient to the task of protecting the nation against 21st-century terrorism.
"The revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could have anticipated in 1978," Hayden told the National Press Club last month. "And I don't think anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9-11."
It may very well have been politically prudent and, less possibly, constitutionally necessary for President Bush to go to Congress five years ago to amend FISA and expedite the surveillance of communications between individuals in the United States and suspected or known foreign terrorists.
If the administration had done so, however, does anyone doubt that congressional media darlings would have made it headline news? And then, as now, does anyone believe the terrorists wouldn't be listening to what our lawmakers say about what our country is doing to thwart them?