Disorder in the Court (FISA)

The Weekly Standard ^ | January 2, 2006 | David Tell, for the Editors

[RWR8189]

Since shortly after September 11, 2001-and under the terms of a formal order signed by the president of the United States sometime early the following year-the Pentagon's giant signals--intelligence division, the National Security Agency, has monitored "the international telephone calls and international email messages of hundreds, perhaps thousands, of people inside the United States without warrants." So reported the New York Times more than a week ago. Official Washington is appalled.

Isn't this sort of thing supposed to be illegal-unconstitutional, even? And why would the president think such unilateral domestic spying necessary to begin with? Why couldn't the Justice Department first seek permission from the special judicial panel established for precisely such circumstances by the Foreign Intelligence Surveillance Act of 1978? It's not as though this so--called FISA court was likely to turn them down, after all; that's happened fewer than a half--dozen times in nearly 30 years. And it's not as though the court's rules weren't flexible enough to accommodate the occasional intelligence--community emergency, either. When necessary, and by statute, the government is allowed to seek and secure FISA court approval for relevant wiretaps up to 72 hours after those wiretaps are turned on.

Besides which, if the president really was convinced that U.S. counterterrorism requirements included a program of domestic surveillance beyond what FISA authorized, how come he didn't just ask Congress to amend that law-instead of granting himself apparent permission to violate its very essence?

As we say, Washington is aghast. Mind you: It's not that anybody's especially eager to conclude that George W. Bush is a yahoo Texas cowboy engaged in sweeping, Big Brother--like invasions of American privacy simply because his coterie of whack--job Federalist Society lawyers tell him that presidents should do whatever the hell they want, and this would be an excellent way to prove it. That's not it at all. Democratic National Committee chairman Howard Dean reports that the mere contemplation of such a possibility is "painful" to him. He is bearing this pain, however-he and everyone else in the president's metastasizing army of critics. Their question persists: Why on earth-in the immediate aftermath of 9/11, when our need for meaningful signals intelligence was presumably at its zenith-would the president not have turned first, for assistance, to the Foreign Intelligence Surveillance Court?

Because that would have been insane, that's why.

Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it's been revealed in any number of authoritative, after--the--disaster investigations. According to the December 2002 report of the House and Senate intelligence committees' Joint Inquiry into the Terrorist Attacks of September 11, 2001, for one, the FISA system as a whole-and the FISA court in particular-went seriously off the rails sometime around 1995. A false impression began mysteriously to take hold throughout the government that the FISA statute, in combination with the Fourth Amendment, erected an almost impermeable barrier between intelligence agents and law enforcement personnel where electronic eavesdropping was concerned. And by the time, a few years later, that Osama bin Laden had finally become an official counterterrorism priority, this FISA court--enforced "wall" had already crippled the government's al Qaeda monitoring efforts.

Absent specific, prior authorization from the FISA court, federal al Qaeda investigators were formally prohibited from sharing surveillance--derived intelligence information about terrorism suspects and plots with their law enforcement counterparts. And in late 2000, after federal prosecutors discovered a series of legally inconsequential errors and omissions in certain al Qaeda--related surveillance applications the FISA court had previously approved, the court's infamously prickly presiding judge, Royce Lamberth, appears to have had a temper tantrum ferocious enough to all but shut down the Justice Department's terrorism wiretapping program. "The consequences of the FISA Court's approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive," the Joint Inquiry explained. "Many FISA surveillances of suspected al Qaeda agents expired because [Justice officials] were not willing to apply for application renewals when they were not completely confident of their accuracy." And new applications were not forthcoming, the result being that, at least by the reckoning of one FBI manager who testified before the intelligence committees, "no FISA orders targeted against al Qaeda existed in 2001" at all. Not one.

Non--Justice intelligence agencies quailed before Judge Lamberth, too, it should be noted. The National Security Agency, for example, "began to indicate on all reports of terrorism--related information that the content could not be shared with law enforcement personnel without FISA Court approval." It used to be, not so long ago, that NSA's pre--9/11 timidity about such eavesdropping was universally considered a terrible mistake. The agency's "cautious approach to any collection of intelligence relating to activities in the United States," the Joint Inquiry concluded, helped blind it to the nature of al Qaeda's threat. NSA "adopted a policy that avoided intercepting communications between individuals in the United States and foreign countries." What's more, NSA adopted this unfortunate policy "even though the collection of such communications is within its mission," even though "a significant portion of the communications collected by NSA" has always involved "U.S. persons or contain[ed] information about U.S. persons," and even though "the NSA and the FBI have the authority, in certain circumstances, to intercept . . . communications that have one communicant in the United States and one in a foreign country."

"One such collection capability" mentioned in a heavily redacted section of the Joint Inquiry report sounds like it might be especially relevant to the current controversy over President Bush's Gestapo--like tendencies. It seems there's long been something called "the FISA Court technique," a category of electronic surveillance distinguishable from ordinary, FISA--regulated eavesdropping by its higher probability of capturing "communications between individuals in the United States and foreign countries"-but meeting the "approval of the FISA Court" just the same. Alas, "NSA did not use the FISA Court technique" against our nation's enemies in the old days, "precisely because" of its allergy to domestic surveillance. And "thus, a gap developed between the level of coverage of communications between the United States and foreign countries that was technically and legally available to the Intelligence Community and the actual use of that surveillance capability."

Sounds like it would have been a really, really good idea for NSA to have gone ahead and done this stuff back before 9/11. So why is it such an atrocity that President Bush has them doing it now?

[doug from upland]

Maybe he believes in what he is doing.

[Txsleuth]

I read recently that Collen Rowley is planning on running for Congress...but, as a Democrat..

So...I guess the complaints she had against the "wall" was with Bush..NOT Clinton.

[Peach]

LOL. We figured her for a Rat when she testified. Nothing like pretending Clinton/Reno/Gorelick weren't the ones who got us in that mess with the wall in the first place.

[Arizona Carolyn]

Maybe he does or then again..... maybe he really is a sympathizer. I'd rather not find out the hard way.

[Txsleuth]

First of all...thank you Peach for the name of that judge...

Second, you are right, AC---two judges that have question marks about them...coincidence?? I doubt it.

Remember, a few days ago an article came out about how Clinton used satellite intelligence (?) right after the Murrah Bldg. bombing...wonder if these judges were needed to approve that..

Also, I heard the remark made by Jim Angle tonight about how the Bush Administration says they have a good reason for not going to the court AFTER the wiretaps..but, they can't reveal it.

Did ya'll see the article today by Stephen Hayes...he said that the White House is FINALLY going to start revealing some of the evidence that they have had re: the reason to go into Iraq...that they have been reluctant to release before now...

MAYBE..they have realized it doesn't do any good to "hide" things..because of the sieve that is Washington..and the want this stuff to come out when/how THEY want it to...instead of with a NYTIMES spin.

[Arizona Carolyn]

I think I read the same thing. I hope as a dem because she is brainwashed after living in the Northern Midwest because I don't see how she would justify blaming the President for the wall issues.

[Arizona Carolyn]

No, I didn't see the Stephen Hayes article. I hope they do (start to reveal the information and soon).... I found Jim Angles comments to be very intriguing and would love to know if we are on to what he was alluding to in that comment; did you notice his knowing-smile? I think he knows and was told not to tell.

[Peach]

Txsleuth - The information about Clinton using NSA to spy on Americans after OKC did not come to light until 2 weeks ago, to my knowledge. And if I'm remembering that article correctly, he didn't go through FISA.

Also, freepers found a speech Gorelick gave when she was Clinton's Assistant Attorney General and she said that no president would cede authority to the courts or Congress and that the president retained his authority under the constitution to do whatever was necessary (i.e., spy on Americans without FISA approval) if the threat warranted such action.

[Arizona Carolyn]

BTW -- don't you love how as soon as Karl Rove wasn't the person indicted by Fitzgerald the whole thing has become a news non-story? (or is Crissy Matthews and Keith Olberman still on it?)

[Arizona Carolyn]

Peach I read that last week, too... also was mentioned several times on FOX. I'm praying for hearings -- I hope some of which are public -- if they actually call her to testify (since the 911 committee blew it with her on the wrong side of the table IMHO) maybe we can actually see Able Danger start to move forward.

Speaking of Able Danger, do you suppose one reason Rummy is reluctant is not wanting to make public how advanced our military spying became after the domestic groups fell apart under Reno/Goerlick?

[Txsleuth]

I heard a couple of "talking heads" on TV the other day..debating how Bush's presidency will go next year...

and the dem one predicted that Rove would be indicted..that it is the reason the Fitzy took it to another grand jury, instead of closing the investigation...

I am sure it was wishful thinking on his part...but, I don't trust Fitzy...and now, it looks like there isn't any court or judge that can be fully trusted.

[Peach]

Someone told me a few weeks ago that Rumsfeld had given permission to Able Danger guys to testify! Weldon reported it on a radio show.

Also, in that post #34 about Lambreth, the last paragraph or so mentions that the 9/11 Commission wasn't terribly interestedin investigating Lambreth either - despite being warned by the FBI that he was a jihadist sympathizer. Their report is as worthless as toilet paper, imo.

Regarding what you said about Rummy, I'll bet that was one of his concerns. And typically one would just say -- hold private hearings. But knowing those Senators, they leak worse than a 3 year old.

[SittinYonder]

Good giggly wiggly!

[Txsleuth]

I think you have a great point...

I think that one reason that Bush hasn't "fought back" like we want him to...is because, unlike the dems...he remembers that we are STILL at war with the same enemy that has been attacking us for decades...

The less they know about our "failures" ..the less they will know about our "trimuphs"...which is necessary when fighting a war..

[Sacajaweau]

Glad you brought the Rove thing up. I remember when I started writing about the Matt Cooper/Mandy Grunwald/Hillary Clinton connection, there was a "blink" in the media reports.

And the only reason I found the connection was curiousity because they weren't given up info on Matt. Oh, by the way, the week of July 6th was Cooper's FIRST WEEK as White House correspondent. Imagine that!!

Last I heard, Valerie resigned (imagine that) and Joe and Valerie are moving to California.

[Zack Nguyen]

Absent specific, prior authorization from the FISA court, federal al Qaeda investigators were formally prohibited from sharing surveillance--derived intelligence information about terrorism suspects and plots with their law enforcement counterparts.

Legally speaking, what was the reason for this wall of separation? Is it because intelligence officers can monitor "foreign agents" whether they are engaged in a crime or not, thus if a crime is discovered in the course of intelligence surveillance there would not be probable cause, thus the surveillance would be no good in court?

On the conspiracy side, I have always wondered if this wall was put in place to keep the FBI from discovering too much about Clinton connections to Chinese espionage.

[Arizona Carolyn]

I don't trust Fritz and I'm worried about DeLay unless they can keep his trial out of Austin. I can only imagine how our justice system would look if Hillary had another eight years to mess with it.

[Arizona Carolyn]

No one in Washington can keep a secret for long. Might as well have the hearings in public so we can get the unvarnished truth instead of the NYTimes spin version.

[Marine_Uncle]

"p.s.... what is the true estimate of oil in ANWR.. Washington Post had an article stating there is only 17 months -- so, of course, the libs jump on that as fact."
I do not have an honest answer. But we must remember the "little piece" of real estate within the whole refuge area is perhaps 5% of the land mass. There may be truely large reserves more inland. Let me provide you the USGS (United States Geological Survey) report from 1998. Much of it will perhaps not make much sense to you. But if one where to go down the summary area, one will find text and a chart that will project anywhere between 4 to 10 billion barrels. This depends on many factors. But lets be generous and say they could extract over a period of time 10 billion barrels before the shelf area is exhausted.
Now. So not to appear unfair. Let me add a good site for a general discussion of US oil needs, how much we use, who we get our oil from etc..
US
USGS
Now at the US site you will find that the US consumes on an average basis some 20 million barrels of oil a day.
Now at the USGS site you will find the chart and associate text in the summary area that claims we could find as much as 10 billion barrels of oil. Of course the chart is quite clear in that depending on many factors including the going price of oil on the world market one may only find 4 or less billion barrels of oil. It is not a clean cut answer. There are many factors you may want to attempt to get familiar with at this site. But clearly. Even at the low end, say 2 to 4 billion barrels of oil total. It would appear that we would have more life to the drill site then 17 months worth of oil. And that 17 months is most probably very misleading, for there are all kinds of probable projections the companies would use based on many different factors just to darn extensive to explain in such a terse reply. And I could not expand on what I say if you where to pay me. I just have an idea that the areas adjacent to the main ANWR area might contain a lot more oil then is being talked about. But the fact remains is the proposals where only to drill in the main ANWR area at given sites. So perhaps I totally am confusing the issue.
Bottom line is this. We are talking about extracting oil from said site for perhaps a few years or more, before the wells run dry. Our yearly needs continue to increase. So what today might be in reality 20 million barrels per day consumption may double in the next five years. HOWEVER
Lets do a bit of math.
20mb per day (360) = 7,200 mb or 7.2 billion of barrels per year.
OK. Now remember where just attempting to put things into perspective. If we where able to extract the total ANWR reserve and store it all in one years time. You can see that it may not be enough oil to serve our needs for between one half year and lets say a year and a half at most.
So perhaps that is where someone came up with that 17 month figure. BUT. It is misleading. Becuase it is not like we had all the oil already pumped out and stored. The site may only produce a couple hundred thousand barrels per day. See what I mean. It is not so easy to talk about this stuff in simple terms.
That is why my original comments included all types of potential sources of oil we do know we have within the USA.
I appologize for not being more concise nor accurate. It is about the best I can do without getting involved with the issue. But in all honestly it appears ANWR alone will not produce anywhere near enough oil to allow us to stop buying from other sources.

[Arizona Carolyn]

and Karl Rove is going to run right out and leak like a sieve to a new reporter on the beat /sarcasm on...