FISA Court Discouraged Moussaoui Warrant

NewsMax.com ^ | Dec. 23, 2005 | Carl Limbacher

[Carl/NewsMax]

Led by the New York Times, a chorus of administration critics have been insisting all week that there was no reason for President Bush to circumvent the Foreign Intelligence Surveillance Court when he sought to wiretap terrorists operating inside the U.S. - since the FISA Court almost always approves such requests.

But that's not what the Times reported three years ago, after FBI whistleblower Coleen Rowley came forward with the allegation that the Bureau might have been able to stop the 9/11 attacks if only investigators had been allowed access to the laptop computer of suspected 20th hijacker Zacarias Moussaoui.

Moussaoui was arrested in Minneapolis on Aug. 16, 2001 - nearly four weeks before the 9/11 attacks - after an instructor at a local flight school he attended called the F.B.I. to report that he suspected the Moroccan-born terrorist was up to no good.

In a May 2002 report the Times noted: "Two days later, F.B.I. agents in Minnesota asked Washington to obtain a special warrant to search his laptop computer."

However, there was a problem. The paper explained:

"Recent interviews of intelligence officials by The New York Times suggest that the Bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information."

"The F.B.I.," officials told the Times, "had become wary after a well-regarded supervisor was disciplined because the [FISA] court complained that he had submitted improper information on applications."

The secret court went so far as to discipline Michael Resnick, the F.B.I. supervisor in charge of coordinating terrorist surveillance operations, saying they would no longer accept warrant applications from him.

Intelligence officials told the Times that the FISA Court's decision to reprimand Resnick, who had been a rising star in the FBI, "resulted in making the Bureau far less aggressive in seeking information on terrorists."

"Other officials," the paper said, complained that the FISA Court's actions against Resnick "prompted Bureau officials to adopt a play-it-safe approach that meant submitting fewer applications and declining to submit any that could be questioned."

Sen. Charles Grassley is among those who think that the FBI might have been able to stop the 9/11 attacks if the FISA Court hadn't discouraged the Bureau from aggressively pursuing a warrant in the Moussaoui case.

In a January 2002 letter to FBI Director Robert Mueller, Grassley noted that had a search been permitted, "Agents would have found information in Moussaoui’s belongings that linked him both to a major financier of the [9/11] hijacking plot working out of Germany, and to a Malaysian Al Qaeda boss who had met with at least two other [9/11] hijackers while under surveillance by intelligence officials."

[Valpal1]

Thanks!

[FairOpinion]

Judge Royce Lamberth :

Federal Judicial Service:
U. S. District Court for the District of Columbia
Nominated by Ronald Reagan on March 19, 1987, to a seat vacated by Barrington D. Parker, Sr.; Confirmed by the Senate on November 13, 1987, and received commission on November 16, 1987.

http://air.fjc.gov/servlet/tGetInfo?jid=1333


====

He was appointed Presiding Judge of the U.S. Foreign Intelligence Surveillance Court in May 1995 by Chief Justice Rehnquist.


http://www.dcd.uscourts.gov/lamberth-bio.html


===

Looks like he is one of those libertarian-conservative judges, who rather see us dead, than to wiretap anyone.

[FairOpinion]

" there are simply too many protections offered by our judicial system, its a system that is primarily designed to deal with crime AFTER it has occurred - which is of no use when trying to stop domestic terrorism."

====

Exactly.
Another good editorial discussing the facts:

Wiretaps for me, not thee?

http://www.freerepublic.com/focus/f-news/1546024/posts

Can Democratic presidents order wiretaps on U.S. soil without a court order, but not Republicans? We ask because that's the standard critics appear to be using against President Bush over National Security Agency surveillance of al Qaeda operatives. Every president, Democrat or Republican, has exercised this authority since the Foreign Intelligence Surveillance Act became law in October 1978. But it appears to be deemed problematical only for President Bush, whose wiretaps are said to have caught Iyman Faris, a naturalized U.S. citizen who wanted to bomb the Brooklyn Bridge.

===

I guess President Bush should have just let the terrorists blow up the Brooklyn Bridge... (/sarcasm)

[FairOpinion]

See posts 19 & 22.

[talkshowamerica]

This really doesn't surprise me. As a 25 year veteran law enforcement officer, I have seen this all too many times, although not on the level of National Security. These pompous ass judges apply their own standards to the issuing of search warrants, not the standards set forth in the law.

In order to obtain a search warrant a law enforcement officer merely needs to provide probable cause in his affidavit for that warrant that he believes that what he is looking for will be found where his is asking to search, he has to articulate the specific person, place or thing to be searched.

He needs only satisfy a basis of knowledge standard or a veracity standard in applying for the warrant. (In some states you need both, MA. is one of them) Certainly a Federal Agent should satisfy both prongs of the test. ( Aguilar v Texas, Spinelli v U.S.)

Unfortunately many Judges ignore this probable cause and basis of knowledge/veracity test, and almost require you to prove beyond a reasonable doubt (the standard used for conviction) before they'll issue a search warrant. This is utterly ridiculous and certainly hampers law enforcement efforts to protect citizens against criminals and in this case terrorists.

Probable cause for search warrants is basically defined as: Facts and circumstances that would lead a reasonable and prudent person to believe that a crime has been, is being or is about to be committed and evidence you are searching for is evidence of that crime.

In this case the crime would have been conducting a terrorist plot to attack the United States and conspiracy to to conduct a terrorist attack against the United States.

There was more than enough reasonable suspicion of possible criminal activity here to have probable cause to issue the warrant, especially in the FISA court.

[neodad]

Link to actual memo: http://www.apfn.org/apfn/WTC_whistleblower1.htm

[elbucko]

There was more than enough reasonable suspicion of possible criminal activity here to have probable cause to issue the warrant, especially in the FISA court.

I agree. Civil libertarians and the Left have continuously argued the safe side of error. Their standards have been met. Especially after 9/11.

[gondramB]

""The F.B.I.," officials told the Times, "had become wary after a well-regarded supervisor was disciplined because the [FISA] court complained that he had submitted improper information on applications."

The secret court went so far as to discipline Michael Resnick, the F.B.I. supervisor in charge of coordinating terrorist surveillance operations, saying they would no longer accept warrant applications from him. "

That sounds like the court was saying that the FBI lied on an application.

[anglian]

Michael Resnick, who was working under the radical Fundamentalist Unit of the FBI, was reprimanded by Attorney General Janet Reno for “filing misleading affidavits’ to the courts to try to obtain search warrants to eavesdrop on people “suspected of being foreign agents of international terrorists.” The seven judges on the court charged that FBI supervisor Michael Resnick, in charge of surveilling Hamas, had been presenting them with misleading affidavits, which seems like a judicious way of saying he'd been lying to them. Mr. Specter said the Senate Judiciary Committee should question the supervisor, Michael Resnick, and even the members of the Foreign Intelligence Surveillance Court, which issues national security search warrants, but only informally, to find out what happened.>>>>>>>>>>>>>>>> Secret Court Rebuffs Ashcroft Justice Dept Posted: Friday, August 23, 2002 FISA applications are voluminous documents, containing boilerplate language as well as details specific to each circumstance. In one case, the FISA judges were so angered by inaccuracies in affidavits submitted by FBI agent Michael Resnick that they barred him from ever appearing before the court, according to the ruling and government sources. Referring to "the troubling number of inaccurate FBI affidavits in so many FISA applications," the court said in its opinion: "In virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors." ____________ Despite the fact that the department admitted in September of 2000 that it violated the evidence-sharing rules in 75 cases, no network ever uttered the name “Janet Reno,” the Attorney General at the time. The court that works in secret is now publicly accusing the FBI of giving it misleading information in order to get wiretaps and surveillance on spies and terrorists. The 75 cases the court cites took place during the Clinton administration. Some 75 FBI wiretap requests were rejected because the court said they were full of inaccuracies and misrepresentations. Former FBI Director Louis Freeh even signed off on one that is said to have been misleading. Under the Bush administration those errors were corrected and new procedure for requesting wiretaps adopted. And one judge on the court said quote, 'We consistently find the (FISA) applications 'well-scrubbed' by the Attorney General and his staff before they are presented to us. The process is working. It is working in part because the Attorney General is conscientiously doing his job, as is his staff.'”

[Mo1]

The secret court went so far as to discipline Michael Resnick, the F.B.I. supervisor in charge of coordinating terrorist surveillance operations, saying they would no longer accept warrant applications from him.

Because of paperwork???

[Mo1]

Because the whole episode is classified, it's impossible for the public to really know whether this was another case of Lamberth going ballistic over a minor bureaucratic snafu or a serious screwup by the Justice Department. Either way, civil libertarians were reassured simply to know that the judge really was exercising his oversight role on the court with an eye towards protecting constitutional rights.

Another case ????

[JCEccles]

The judiciary is a weapon that liberals use when they are unable to destroy their country by other means. To hasten the Republic's demise, liberal judges are adept at exercising the powers of all three branches of government when it suits them, and it frequently DOES suit them.

Some liberals on the FISA court apparently believe it is their role to subvert and commandeer the president's war fighting role. Bush ignored them and went around them. That's why at least one liberal judge has resigned. He was angry that Bush succeeded in protecting the country despite FISA.

[rdb3]

Whoa!

[maro]

They are not against us catching the bad guys, so long as we read them their rights, get them a lawyer, buy them a latte, and not be mean to them.

[jokar]

bump

[VOA]

Intelligence officials told the Times that the FISA Court's
decision to reprimand
Resnick, who had been a rising star in the FBI,
"resulted in making the Bureau far less aggressive in seeking
information on terrorists."

No good deed goes unpunished.
I hope Agent Resnick finally was vindicated and didn't have his
career busted.

BUT, having seen the case of John O'Neill, I wouldn't be suprised
if Resnick got the punishment handed out to agents by Hoover:
banishment to the Oklahoma City office.

More on O'Neill's case (even if it's from PBS Frontline):
http://www.pbs.org/wgbh/pages/frontline/shows/knew/

[Tarantulas]

"Sen. Charles Grassley is among those who think that the FBI might have been able to stop the 9/11 attacks if the FISA Court hadn't discouraged the Bureau from aggressively pursuing a warrant in the Moussaoui case."

I just watched a fellow conservative get reamed by lefties because he linked to this NewsMax article and then discovered that NewsMax got yet another story wrong. The FISA court didn't discourage the Bureau from anything because the Bureau never submitted the request for a warrant. Here's Senator Grassley's letter - note that the date is 2003, not 2002 - another NewsMax error:

http://www.techlawjournal.com/cong108/fisa/20030109.asp

I've been burned too many times by NewsMax stories to ever again use them as a reference.