Using All the Tools
How? Unelected judges are not the answer. Warrants that aren't required for listening to terrorist communications in Iraq or Afghanistan should not be needed to listen to a terrorist abroad calling a potential plotter inside the United States.
As I argued last week, there are issues that should have bipartisan support, and this is one of them. To this end, the president must delegate someone trusted by Congress to come up with a sustainable bipartisan solution exempting data mining from the constraints of FISA while providing for appropriate congressional oversight. This will require good-faith negotiations between the White House and Congress. Staff members from the congressional intelligence committees, with the benefit of joint legal counsel, could be assigned to the NSA, fully briefed on all its operations so they can report back to the committee members. We must act at once, for the revelations about the NSA program have already alerted the terrorists to change their ways.
Another element to ensure public confidence commends itself. This is Judge Richard Posner's suggestion that information obtained through this intercept process should never be allowed in court but should be used only for counterterrorism intelligence. Our leaders must prevent issues of national security and civil liberties from becoming excessively politicized or legalized. Abraham Lincoln understood this. "Must a government, of necessity, be too strong for the liberties of its own people," he asked, "or too weak to maintain its own existence?" We must find the right balance in the war against terrorism, whose proponents' only goal is to destroy America.
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