'From the Beirut Bombing to 9/11'

During a 1998 interview with an ABC News reporter in Afghanistan, Osama bin Laden declared that this withdrawal proved Americans can't accept casualties. It was obviously a consideration in his decision to order the 9/11 terrorist attacks. But the conventional wisdom, that those deadly attacks resulted from "an intelligence failure," doesn't tell the full story.

A major reason we failed to detect the 9/11 attacks in advance was because, beginning in the 1970s, Congress launched a major public attack on the intelligence community. Mr. Biden, for example, was one of 17 senators to vote on Oct. 2, 1974, to make all covert operations (even espionage in some cases) unlawful. In 1986, he bragged in a New Republic interview that he'd personally blocked planned covert operations during the Reagan administration simply by threatening to leak them. (That statement calls to mind John Jay's observation, in Federalist No. 64, that because Congress could not be trusted to keep secrets, the Constitution left the president "able to manage the business of intelligence as prudence might suggest.")

In 1978, Congress continued its intrusion into presidential powers by enacting the Foreign Intelligence Surveillance Act (FISA), making it a felony for intelligence professionals to monitor communications between foreign terrorists abroad and individuals within the U.S. without first getting a special warrant. But in a unanimous opinion, the appellate court established by FISA observed that every court to decide the issue had held the president has "inherent authority" under the Constitution "to conduct warrantless searches to obtain foreign intelligence information," adding: "We take for granted that the President does have that authority . . ."

Congress failed to anticipate in FISA the dangers posed by a terrorist like Zacarias Moussaoui -- which is why FBI agents were unable to examine the contents of Moussaoui's laptop computer and perhaps prevent the 9/11 attacks. Michael Hayden, then Director of the National Security Agency (NSA), later expressed his "professional judgment" that had these legal constraints (FISA) not existed "we would have detected some of the 9/11 al Qaeda operatives in the United States" prior to the attacks, and "we would have identified them as such."