Point Made

If you're still among those wondering why the Bush Administration elected not to funnel critical US intelligence gathering through the FISA court, this might be one really, really, really good reason.

"We'd like to thank the Washington Post for publishing a story yesterday that so quickly proved our editorial point of the same day about the folly of putting judges in control of national security decisions. That's what we call service.

The front-page story reported that on rare occasion the Bush Administration has used information from the NSA's warrantless foreign-linked wiretaps to seek domestic wiretapping authority from the Foreign Intelligence Surveillance Court. This was said to have upset chief FISA judge Colleen Kollar-Kotelly, and the tenor of the story is that this is one more example of how the warrantless wiretaps are an abuse of power. But the better question is, Who elected Ms. Kollar-Kotelly?

The story's real news is that Judge Kollar-Kotelly, and her predecessor, Judge Royce Lamberth, took it upon themselves to erect a new "wall" concerning how intelligence is to be used to protect America. They decided that pertinent information gleaned from a warrantless wiretap should never be used later to justify a domestic warrant. But why not? If a tip gathered from an email from Pakistan leads to suspicion about an American-based contact, what's wrong with using that news to get a legal warrant to track that suspect in the U.S.? It might even prevent a domestic attack.

In any event, why is an unelected judge such as Ms. Kollar-Kotelly making these decisions? Under the Constitution, those calls ought to be made by the President, who swears to defend the U.S. and can be held accountable by the voters if he fails. Under the current FISA court process, Judge Kollar-Kotelly answers essentially to no one.

GOP Senator Arlen Specter is saying he wants to write legislation putting even more power in the hands of FISA judges. This isn't merely unconstitutional. As the Post story shows, in a world of WMD and fast-moving transnational terrorists, it's dangerous."