I've just published an op-ed with Fox News, opposing the effort to require warrants to search lawfully collected section 702 intercepts. It begins:
You might be surprised to discover that the average college freshman doesn’t remember 9/11.
I was even more surprised to find that a lot of Congressmen don’t either.
That’s the only good explanation for their willingness to play chicken with one of our most valuable anti-terrorism programs.
And it finishes with my experience defending and renouncing the wall that many of the 702 "reform" proposals would at least partially restore:
Inspired by ISIS, more terrorists are internet-radicalized loners, and many are already known in a general way to law enforcement. They may be “lone wolves” but they’re also “known wolves.” This is no time to make it harder to do an electronic background check on these known suspects. If there were a truth in labeling requirement for acts of Congress, the proposed warrant requirement would be called the “Known Lone Wolf Preservation Act.”
This is all achingly familiar to me. In the 1990s, I was one of those who defended the idea of a wall between intelligence and law enforcement. Not because there had been actual abuses, but because it was easy to imagine them. So why not construct a wall and reduce the risk of abuse?
Well, now we know. In August of 2001, just weeks before the 9/11 attacks, it was the wall that prevented the FBI’s largest and most sophisticated counterterrorism task force from acting when it got word that hardened al Qaeda terror plotters were inside the United States. The FBI had plenty of time in late August and early September to track the plotters down; if they had been allowed to use the intelligence, I am convinced that they would have caught the terrorists and changed history. But the FISA court and FBI lawyers were enforcing the wall so harshly that in the end the FBI task force was forced to stand down, and the attacks played out.
When the 9/11 Commission held its hearings, I felt compelled to tell that story – and to recant my support for the wall.
“I was wrong,” I testified.
I never again want to stand before the children and parents of Americans killed by terrorists and say that my enthusiasm for some unproven theory of civil liberties helped get their loved ones killed.
And if I can offer one piece of hard-earned advice to members of Congress, it’s this: Neither do you.