Keeping Tabs on Terrorists

This is a partial transcript of "The Big Story With John Gibson," January 19, 2005, that has been edited for clarity.

JOHN GIBSON, HOST: So Usama says his henchmen are making plans to strike again on U.S. soil. But are the laws in our country strong enough to deal with this threat?

Let's ask our next guest, who knows these laws very well, Victoria Toensing, a former Justice Department official.

Victoria, you wrote a column Thursday about why FISA isn't equipped to deal with these wiretap requests, as a lot of people are screaming should have happened. This has to do with the NSA wiretapping story, of course. Why isn't the FISA court able to react quickly enough to be able to handle it in the way that evidently President Bush wanted it handled?

VICTORIA TOENSING, FMR. JUSTICE DEPT. OFFICIAL: Well, John, it was written in 1978. Now, who had a cell phone in '78? Who had a computer? Who even knew what a fiber-optic cable was? I mean, the technology has advanced so far today, and that's how the terrorists are communicating with each other, along all of these routes that nobody in the 1970s ever envisioned.

So those critics of the president for the NSA program are saying, "Hey, you should be back in the horse and buggy days, but use the horse and buggy to get us to Paris." It doesn't work out.

GIBSON: Victoria, how does this tape from bin Laden Thursday illustrate, if it does, that this wiretapping program needs to go on?

TOENSING: He's talking about planning another attack. And how did they plan the first attack? They had sleeper cells in the United States. Are we to say that just ... now, see, this is what's so ridiculous about it, John. If the Al Qaeda person is in Afghanistan, NSA can listen to what he's doing without a warrant at all.

GIBSON: Al Qaeda No. A (sic).

TOENSING: Al Qaeda A (sic) flies to the United States for three hours for a meeting, and guess what? The critics are saying that we should shut down listening to him while he's in the United States and only listen to him after he's back on the plane and has landed back in Pakistan.

That is just ridiculous. And that's the area of this so-called emergency. I hear people get on TV who have no idea what they're talking about because they never worked in this area. "Oh, you can get an emergency warrant and 72 hours later just go to the court." Here are two problems with that, John.

Number one is that in the emergency, things have to be put in writing. There's no five-minute tap in an emergency. It still has to get the approval of the attorney general who isn't going to do it on a phone call from somebody from NSA saying "A.G., we're in trouble, just say yes." He has to see something in writing. That takes hours at a minimum. By that time the agent is back in Pakistan and they're already having made their plans.

Also, the people who say, you know, put the tap on and 72 hours later go to the court. You have to have what's called probable cause under this statute. Probable cause to believe the person is an agent of a foreign power and he's going to provide foreign intelligence information.

If you capture an agent in Pakistan and he's talking to Agent B on the telephone, maybe if he comes to the United States you might have probable cause. But say they have a tap on Agent B and he's talking to Agent C two or three times a week and Agent C comes to the United States, no court is going to find that that's probable cause. People who aren't lawyers don't appreciate that.

So there are two problems with what the critics say. You can't get an emergency one in enough time and usually with the kind of information that you have it's hard the to establish probable cause.

GIBSON: Victoria Toensing, thanks for explaining it. Talk to you later.

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