Posted on 12/27/2005 12:53:13 PM PST by 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?
I'm having computer problems so I'll log off for the evening with this:
The FISA Court also said the powers given to criminal investigators by Ashcroft might allow the government to illegally use intelligence information in criminal cases. It noted that the Department of Justice, under the Clinton administration, had abused the FISA process and misled the court at least 12 times and that the government had admitted FBI officials had provided erroneous information to the court on more than 75 requests for warrants and wiretaps.
U.S. District Judge Royce C. Lamberth signed the ruling, which wasn't released until August by his replacement, Presiding U.S. District Judge Colleen Kollar-Kotelly. It was the first-ever published opinion by the FISA Court.
Upon the ruling's release, the Justice Department filed an appeal citing the FISA Court's failure to consider the expanded intelligence sharing powers legalized under the Patriot Act. The Department of Justice also argued that the May 17 ruling violated the Constitutional separation of powers between the judiciary and executive branches.
Interesting that:
1) Lamberth is no longer on the court (FISA).
2) Clinton abused FISA many times and no one on the left seemed to mind.
3) FISA published their first ever opinion publicly.
Thanks again for publishing this information about Lamberth, Carolyn. See you tomorrow as freepers find even more interesting information overnight.
excellent point! We know Hillary specifically chose Janet Reno because they could manipulate her.
Because of when the Gorelick memo was issued, which admitted in its text that it "went beyond what the law required," it may have been done to prevent foreign intelligence on China from revealing Clinton crimes with Chinese money in his campaigns.
I suspect that, too, but the Clintons have never had their "John Dean," just one person near the center who turned honest and told all that he knew. Maybe Ron Brown or Vince Foster would have done that, the first because the prosecutors were closing in on him and he didn't want to go down alone. The latter because he had an attack of conscience. But, surprisingly, both of them are dead.
Congressman Billybob
Thank you.
Last Sunday...the roundtable on the Fox Sunday News show...was asked to name their "winners and losers" of this year...and Brit was first..
He named as his loser, Duke Cunningham...and when he did, Chris Wallace made the comment...that there would "probably be another one, from TExas next year"...referencing Delay, I am sure...
Boy, that made my blood boil...and NO ONE, not even Brit asked him why he said that..
Don't you think it is possible..that regardless of how much/little we can get from ANWR...that just the psychological aspect of us starting to produce more of our own oil...
might play on the Saudis...even a little..thinking that we won't "need" them as much..so might be more inclined to come down harder on them for their dastardly ways??
OOOPS...I meant to add Hugo Chavez to the scenario I just posted re: Saudi.
I would have said 'not surprisingly' both are dead. I have no doubt they both met with Arkancide.
I missed that... actually I missed all the Sunday talk shows this week..... probably a good thing, that, too, would have ticked me off and I think Cunningham is a slime, but then it seems, once you start reading about his links with Pelosi's family, the dem hero Murtha isn't any better...
bump for later read
I kept hearing how easy it was to get a warrant, why didn't Bush get warrants, judges just hand out warrants when asked without asking questions...well, now we know why the President had to resort to other legal remedies.
Thanks for the ping! You'll find Judge Lamberth's name all over the Downside Legacy. He was hard as nails on the Clinton Administration which offended the court many times and in many ways. Having dealt with that for nearly a decade, I wouldn't be surprised if he was soured against the executive branch altogether thus becoming an obstruction to national security under Bush. But I do not suspect him of being intentionally harmful.
One of the reports is specific that the President has powers as Commander in Chief that are not subject to THAT court.
Mary Jo White has a LONG dissertation on this site which I have not yet read...but will do so today....if I can.
Just google FISA.
Cooper actually chased Libby down the next day (July 11th...and I believe, finally got ahold of him at his home. Doesn't make much sense to me unless you are on a mission "to involve him". Why even call both parties on the same thing??
Why didn't Cooper call Wilson himself??
I'm trying to pick up my lower jaw from the floor.
Appreciate the pings for post 34. While it appears Judge Royce is prone to temper and did much to obstruct and intimidate the FBI and shut down communications between agencies, I find the piece in #34 a little thin on proof of ties to Islamic extremism.
That said, it certainly does appear Lamberth should be investigated. But then, so should much of Washington at this point. sigh.
The following is a quote regarding reporting requirements by the FISA: "We oppose a requirement to disclose publicaly the number of FISA targets that are United States persons. Congress has in the past considered and rejected proposals to require disclosure of this to the general public rather than to the Intellignece Committees. In 1984, the Senate Select Committee on Intelligence was asked by the American Civil Liberties Union to consider making public the number of U.S. persons who have been FISA survellance targets. (S. Rep. No. 98-660, 98th Congress...) The Committee rejected that proposal because "the benefits of such disclosure for public understanding would not outweigh the damage to FBI counterintelligence capabilities that can reasonably be expected to result". This line of thought continues: Please read. Maybe someone can summarize it.
There's another statement in one of the FISA reports about the President and assumed powers that he has. I will find it but I have to go now.
Thank you Congressman. I suspect that the Clinton's "John Dean" may not come until Clinton has finished her term or been eliminated from Presidential contention.
I look forward all the time to the definitive book on the Clinton's, which has not yet been written. In fact I wonder if it is even being written. I suspect when it is we will find out about a lot of things that surprise even us. I hope we don't have to wait as long as we did for LBJ's definitive book (Robert Caro.)
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