DOES AL GORE WANT OSAMA BIN LADEN TO SUCCEED?

In an audiotape broadcast Thursday on al Jazeera, Osama bin Laden said al Qaeda is preparing to strike the United States again.

Last month Italian authorities arrested three Algerians with al Qaeda connections. They were plotting attacks on ships, railway stations and stadiums in the United States, said Interior Minister Giuseppe Pisanu.

Some Democrats think President Bush should be impeached for trying to keep them from succeeding.

In a speech Monday remarkable (even for him) for its bombast and hypocrisy, former Vice President Al Gore accused the president of having violated the law when he authorized the National Security Agency to listen in, without warrants, on conversations between al Qaeda suspects abroad and people in the United States.

"A president who breaks the law is a threat to the very structure of our government," Mr. Gore declared.

I don’t recall him uttering such sentiments when President Clinton committed perjury. Those were just "lies about sex."

But I also don’t recall Mr. Gore complaining about Echelon, a much broader electronic intercept program begun in the Clinton administration, when we were not at war.

Intercepts of telephone conversations between al Qaeda suspects abroad and "U.S. persons" are in a legal gray area, chiefly because cell phones and the technology to track them didn’t exist when the Foreign Intelligence Surveillance Act of 1978 was enacted.

"The over arching problem is that FISA is technologically antediluvian," wrote former federal prosecutor Victoria Toensing in the Wall Street Journal Thursday. The law "does not address computers, cell phones or fiber optics in the midst of war."

FISA was primarily responsible for the "wall of separation" erected by Jamie Gorelick, deputy attorney general in the Clinton administration, which forbade FBI agents investigating national security threats from sharing information with FBI agents working on criminal cases, Ms. Toensing said.

The existence of the Gorelick Wall is a big reason why the 9/11 plot went undetected. (Senior FBI officials halted investigations of two of the 9/11 hijackers for fear of breaching the wall.)

The Gorelick Wall was torn down by the Patriot Act, which led to an appeals court ruling upholding that law, but which cast doubt on the constitutionality of FISA.

In 2002, the Foreign Intelligence Court of Review, which reviews decisions made by the Foreign Intelligence Surveillance Court established by FISA, overturned a FISC ruling which would have reinstated Gorelick’s Wall.

"All the other courts to have decided the issue held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information," the Foreign Intelligence Court of Review said.

FISA was an effort to extend to the national security realm a protection the Supreme Court gave criminal suspects in 1967, former federal prosecutor Andrew McCarthy explains in the current issue of National Review.

In Katz v. U.S., the Supreme Court held the Fourth Amendment’s prohibition of unreasonable searches extended to electronic surveillance. The upshot of the decision was that cops had to get a warrant from a judge before they could put a bug on a suspect’s phone.

FISA trespasses on the president’s authority as commander in chief by placing arbitrary limits on national security eavesdropping in time of war, McCarthy argues.

Gore and other hyperventilating Democrats equate warrantless searches with a police state. But the Fourth Amendment forbids unreasonable searches and seizures, not warrantless ones.

Many warrantless searches are reasonable. The Customs agent who checks your luggage when you return from an overseas trip didn’t get a warrant first. If you don’t have an expectation of privacy when you cross an international border, why should your telephone call?

Any expectation of privacy you might have would be for the content of your conversation. But much of what the NSA is gathering is statistical information such as which numbers are calling which other numbers on which dates. Warrants have never been required for the acquisition of such information.

We’re going to have hearings on the NSA intercept program, which could lead to amendments to FISA, and court rulings on its constitutionality. This is the silver lining in the dark cloud that descended on our anti-terror efforts when the existence of the NSA program was leaked.

Jack Kelly is a former Marine and Green Beret and a former deputy assistant secretary of the Air Force in the Reagan administration. He is national security writer for the Pittsburgh Post-Gazette.