The Gamut

Contrary to the claims of Bush administration critics, the 1978 Foreign Intelligence Surveillance Act has seriously hampered U.S. counterterrorism efforts - and actually helped to shield at least two key 9/11 plotters from detection by U.S. law enforcement.

The stunning analysis comes from former Reagan-era Justice Department official Victoria Toensing, who explains on OpinionJournal.com: "I have extensive experience with the consequences of government bungling due to overstrict interpretations of FISA."

As deputy assistant attorney general one of Toensing's chief responsibilities was the terrorism portfolio, which included working with FISA.

She recalled having to terminate a FISA wiretap in the midst of the 1985 hijacking of TWA Flight 847, which ended in the murder of passenger-hostage Navy diver Robert Dean Stethem.

"We had a previously placed tap in the U.S. and thought there was a possibility we could learn the hostages' location," Toensing explained. "But Justice Department career lawyers told me that the FISA statute defined its 'primary purpose' as foreign intelligence gathering. Because crimes were taking place, the FBI had to shut down the wire."

Toensing notes that the vaunted FISA law became the basis for former Deputy Attorney General Jamie Gorelick's notorious wall of separation in 1995 - which prohibited intelligence agencies from sharing information on terrorists with U.S. law enforcement.

She recalled that when "the wall" was finally removed in 2001 by the Patriot Act, the FISA appeals court upheld the new law's constitutionality with a ruling that characterized the rigid interpretation of the FISA statute as "puzzling."

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Toensing said that if intelligence agencies had been able to wiretap terrorists operating inside the U.S. as they do under the Bush program, "we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed American Airlines Flight 77 into the Pentagon."