Andrew McCarthy led the federal prosecution against Sheikh Omar Abdel Rahman and 11 others in connection with the 1993 World Trade Center bombing. Last night, he made an appearance in the Babbott room, where he delivered a talk entitled, "Warrantless Surveillance and the Rule of Law." The Committee on the American Founding and its program director, Shauneen Garrahan '07, sponsored the lecture.

McCarthy is now Director of the Center for Law & Counterterrorism at the Foundation for the Defense of Democracies. During his lecture, he demonstrated why, given his legal experience, he feels the criminal justice system is not an appropriate or effective system for addressing crimes of terror and national security.

McCarthy prefaced his lecture by emphasizing that the U.S. has always accorded due process when trying terrorists and foreign operatives, and should continue to do so.

"As conceived by the framers of the U.S. Constitution, the courts were the bulwark of liberty for Americans against their government," he said. However, he added, the problem is that not everyone is properly a part of the American criminal justice system.

"Framers did not intend courts of the U.S. to be a sort of airy independent body that somehow stepped outside and became a forum for everyone in the world, including enemies of the United States, to come to make their case against the U.S.," he argued.

He noted that between 1993 and 2001, the U.S. was attacked or has thwarted attacks at the rate of about once a year.

"During that eight-year period, we managed, using the criminal justice system, to take out exactly 29 terrorists," McCarthy said. He pointed out, however, that most of them were connected to the World Trade Center bomb plot.

It was after 9/11, McCarthy said, that the U.S. realized, "terrorism is not essentially a legal problem. It is a national security problem that has legal aspects to it."

With respect to matters of national security, McCarthy explained, "It's not a judicial proceeding. In our system, the responding agency of government is the executive branch."

McCarthy said that legislation such as FISA, the Foreign Intelligence Surveillance Act, is commonly Congress' instinctive reaction to mounting fear that the administration has accrued too much power.

McCarthy noted that the first wiretapping law was passed in 1967, in which, he said, "Congress explicitly recognized that it was not presuming to regulate or having anything to say about the ability of the president unilaterally to conduct national security wiretapping."

Eleven years later, FISA was enacted, and "completely turned around" the first statute of the 1967 wiretapping law by limiting the President's authority to wiretap. One of the most serious problems with FISA, McCarthy said, is its provision to establish probable cause before wiretapping can be authorized.

"It doesn't allow us to do the thing we need done in this threatened environment-find who the embedded terrorists are," he said.

McCarthy observed that the Fourth Amendment does not mandate that search warrants be required in every case, only that searches be reasonable. He also said that most searches in the U.S. are conducted without a warrant.

"Matters of national security and national defense are intended to be political issues, not legal ones. And the framers intended for there to be an accountability nexus between the political representatives and the people whose lives are at stake," McCarthy said. "If we're going to be successful in this environment in protecting our country, we have to get back to that. I hope we can get back to that out of prudent analysis rather than a reaction to another terrorist attack."