Every time there's a major intelligence failure there's talk about a makeover. But, every time there's talk about a makeover, it's transmuted into wa… - Mark Riebling

Civil libertarians do not deny that FISA hampers our ability to counter terrorists. Citing the abuses alleged by the Church Committee, however, they argue that chronic insecurity is the price we must pay to preserve our liberties. But the United States was not a fascist dictatorship before Ted Kennedy and Jimmy Carter rode to the rescue. Our current surveillance rules are nether constitutionally required, nor traditionally American. They were observed neither by Senator Kennedy's elder brothers, nor by any presidents or attorneys general before the Carter presidency. For the first two centuries of our country's history, threats to our national security were countered without warrant. And the Supreme Court, from Olmstead v. U.S. (1928) to U.S. v. U.S. District Court (1972), has allowed warrantless surveillance in national security, as opposed to criminal, investigations.

The executive branch has sometimes abused its mandate -- most famously, with the surveillance of Dr. King -- but not as much as the Church Committee would have us believe. The FBI's political spying was not the creation of right-wing reactionaries, and it was not systematically targeted at the innocent grassroots left. It was begun by our most liberal of presidents, FDR, who ordered the surveillance of fascist sympathizers in 1936. The most controversial domestic Counterintelligence Programs (Cointelpro) were actually born in the Kennedy administration, as an attempt to disrupt the Ku Klux Klan. The FBI also disrupted "Black Nationalist Hate Groups," including the Black Panthers. This was not political repression; it was a largely successful effort to deal with violent militant groups.

I think that in the emergency situations like we have with potentially weapons of mass destruction, the agent in the field needs as much flexibility as he can and the decision of probable cause as to what’s going to occur needs to be made not in headquarters and not by the attorney general and not by a special court in Washington, but by the agent in the field who needs to respond immediately.