[JURIST] Former US Department of Justice Office of Legal Counsel [official website] lawyer John Yoo [academic profile; JURIST news archive] defended warrantless wiretapping [WSJ report] in an essay published Thursday by the Wall Street Journal [media website]. Yoo was responding to a report [text; JURIST report] released by five government agencies that alleged that the Bush administration's warrantless wiretapping program relied on flawed legal analysis and produced results of questionable effectiveness, possibly in violation of the 1978 Foreign Intelligence Surveillance Act (FISA) [text]. Yoo claims that a "wall between domestic law enforcement and foreign intelligence" created by FISA contributed to the government's failure to prevent the 9/11 attacks. Calling FISA obsolete due to the fact that it was written with the Cold War in mind, Yoo contends that the law was not enacted to address "live war with an international terrorist organization." Since the legislature is too slow to be effective, Yoo argues, only the executive branch can effectively act in emergency circumstances to protect the public. Yoo discussed the supposed shortcomings of FISA:

Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do.