he rush has already begun to "unshackle" the Central
Intelligence Agency and its fellow spy agencies so that they can
better combat terrorism. Some easing of restrictions may be
warranted in light of last week's terrorist attacks on New York and
Washington. But any changes must be carefully weighed by the Bush
administration and Congress. The temptation will be great to take
steps, including loosening limitations on domestic spying, that
could end up compromising important democratic principles without
yielding any tangible gain in the fight against terrorism.
Generally, there are fewer restraints on intelligence agencies
than popularly assumed, especially when it comes to antiterrorism.
The C.I.A., for example, is not barred from recruiting foreign
informants with criminal records or a history of involvement in
terrorist activities. The recruitment of such people simply has to
be approved by senior intelligence officials and there has to be an
expectation that the source will produce valuable information.
We would be surprised if these guidelines were the reason there
was no warning about last week's attacks. The more likely
explanation is that intelligence agencies, with White House and
Congressional concurrence, have neglected the cultivation of foreign
informants in recent decades in favor of valuable but extremely
expensive technical collection systems like spy satellites. These
technologies, which can intercept millions of intercontinental phone
calls and show a license plate from 200 miles out in space, have
served the nation well. They cannot, however, tell the president
what Osama bin Laden said yesterday to his henchmen in a mud hut in
the mountains of Afghanistan.
After last week's assaults on the World Trade Center and the
Pentagon, the president and his aides may also understandably want
to know what terrorist conspirators are saying to one another in the
United States, either in person or over the phone. If communications
between just a few of the suicidal hijackers had been intercepted in
the days before the attack, perhaps the plot could have been foiled.
Obtaining that sort of information involves difficult legal and
technical issues that cut directly to Fourth Amendment protections
against unreasonable searches and seizures.
The business of tracking down terrorists in the United States
belongs primarily to the Federal Bureau of Investigation and other
law enforcement agencies, which may now need additional money and
staff. With a court order, the F.B.I. can tap specified telephone
lines, intercept mail and take other measures to track the
activities of suspected terrorists. Attorney General John Ashcroft
is seeking expanded wiretap powers for the bureau. Even with that
enhanced authority, the F.B.I. would still lack the technology and
statutory right to randomly monitor telephone communications within
the United States ?including cellphones ?in hopes of intercepting
information about terrorist plots.
The organization that has the technology to do some of that, the
National Security Agency, is limited by law and executive order in
monitoring communications within the United States. To target the
communications of a suspected terrorist in the United States, the
N.S.A. must seek the approval of a special federal court, and show
probable cause that the suspect is an agent of a foreign power and
is involved in terrorism, espionage or sabotage.
These rules were established in 1978 by the Foreign Intelligence
Surveillance Act. There are now bound to be efforts to rewrite that
law to give the N.S.A. greater latitude. Some refinement may be
possible, but even the most modest change will require the utmost
care by the White House and Congress to ensure that this kind of
highly intrusive and indiscriminate intelligence gathering is
tightly controlled and not subject to abuse.
Other intelligence issues, including the ban on assassinations,
will doubtless be revisited in the days ahead. The pressure to relax
restrictions is nearly overwhelming, but the nation will not be well
served if there is a stampede in Washington to discard restraints
that were carefully put in place to reflect and to protect the
character and principles of American
democracy.