Despite the fact that no court had found that FISA as implemented by the Justice Department posed any legal problem, the American Civil Liberties Union even questioned legislative changes allowing the FBI to consult early on with prosecutors in intelligence investigations, as it once had. The ACLU's opposition to national ID cards illustrated its fuzzy thinking. The organization had no problem with driver's licenses or national Social Security cards, which could easily be counterfeited. When it came to similar cards that were reliable and would allow more intelligent screening of passengers at airports, the ACLU raised the flag of civil liberties concerns, saying the cards would centralize private information in a data bank. The fact is that anyone with $35 can obtain the same information on-line. Rather than allow positive identification of passengers, the ACLU was willing to have them subjected to intrusive and time-consuming body and luggage searches.
In a typical statement of the case against the FBI's proposals, Earl C. Ravenal of the Cato Institute wrote in a Washington Post op-ed, "The debate about encryption is nothing less than the Armageddon of government police power versus the heart and soul of the U.S. Constitution."
Civil libertarians complained that the number of FBI wiretaps had increased to record numbers. That was like complaining that the number of arrests had increased. The number of wiretaps rose because crime was increasing and the FBI was doing a better job of going after it. What was important was whether the wiretaps were legal and whether the FBI was abusing its authority. Each wiretap had to be approved by a judge, so it was not a question of infringing on rights. It was a question of making it at least as easy for the FBI to do its job as it was for criminals to do theirs.
The critics seemed to think that FBI agents relish wiretapping. In fact, because of the paperwork involved, it is the least appealing part of an agent's job. Because of lack of resources, the FBI literally cannot transcribe and translate all the wiretapped material it receives.
If the FBI cannnot be trusted to wiretap within the framework of the law, why trust agents to make arrests or carry weapons? What is the point of having an FBI if it is sohobbled that it cannot perform its mission? Whose rights were violated more, those whose phones are tapped by court order or those who died in the September 11 attacks?
If the FBI ever does abuse its authority, the appropriate response would be to prosecute those responsible and institute more oversight, not to diminish the number of wiretaps or make it more difficult to wiretap so that criminals can get away and terrorists can attack again.
Because of the relentless criticism and congressional restrictions, the FBI became so gun-shy that even though terrorists were known to hatch their plots there, the FBI was averse to following suspects into mosques. Because he was a cleric, FBI and Justice Department lawyers debated for months whether to open an investigation of Sheik Omar Abdel Rahman.
"I remember discussions when we said, unfortunately, it will take a tragedy before the issue of the tools we need is recognized for what it is," said Larry Collins, the former SAC in Chicago. "Maybe a congressman's daughter has to be kidnapped, and we can't track her. Congress tied our hands."