The hard part

See this column in Slate by Stewart Baker, formerly general counsel to the NSC. It is a very evenhanded discussion of what the civil liberties lobby has been slow to acknowledge: that some of the reforms suggested by the Bush administration in the Patriot Act and elsewhere, however crude and arrogant, respond to real structural deficiencies in the ability of the intelligence and domestic law enforcement communities to effectively prevent and prosecute terrorist plots.

A short while ago, I had the pleasure of listening to Mary Jo White, the former U.S. Attorney who handled all the major terrorism cases of the nineties lay out a clear eyed picture of how many of the privacy protections built in to the national security architecture repeatedly failed to efficiently handle these cases, her analysis refreshingly free of both political points and doomsday scenarios. Baker's column shows how these protections turned catastrophic in the months preceding 9/11.

Civil liberties advocates and liberals in general need to take into account the need for intelligence reforms to bolster their case against the Administration. The questions about the efficacy of the intelligence community are real and critical, and recognizing this without resorting to zero-sum doomsday scenarios does not have to mean caving to the administration's neanderthal notions of civil liberties. Counting the FISA 'wall' as part and parcel of sensible reforms that need to be made would be a genius way to coopt the administration on their proclaimed monopoly on intelligence wisdom. Indeed, the administration is ripe for criticism that it has done more to hamper effective intelligence gathering than anything in recent memory--but we can hardly make that accusation if we're pretending there's no problem to start with.

The key, as Mary Jo White argued, is an oversight regime that is both transparent and legitimate. No doubt Congress would be falling over themselves to approve a new bill that, while enjoying bipartisan support, took real, practical steps to address terrorist conspiracies. Maybe then they could sleep at night after passing the Patriot Act based on its title page.


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