Disorder in the Court (FISA)

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?

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 found this story from Newsweek in 2002 interesting.

http://foi.missouri.edu/terrorismfoi/whatwentwrong.html

Of special interest was the paragraph that states:

"NEWSWEEK has learned there was one other major complication as America headed into that threat-spiked summer. In Washington, Royce Lamberth, chief judge of the special federal court that reviews national-security wiretaps, erupted in anger when he found that an FBI official was misrepresenting petitions for taps on terror suspects. Lamberth prodded Ashcroft to launch an investigation, which reverberated throughout the bureau. From the summer of 2000 on into the following year, sources said, the FBI was forced to shut down wiretaps of Qaeda-related suspects connected to the 1998 African embassy bombing investigation. “It was a major problem,” said one source familiar with the case, who estimated that 10 to 20 Qaeda wiretaps had to be shut down, as well as wiretaps into a separate New York investigation of Hamas. The effect was to stymie terror surveillance at exactly the moment it was needed most: requests from both Phoenix and Minneapolis for wiretaps were turned down."

Gwjack

FORMER SENIOR WHITE HOUSE AIDE

ACCUSES FEDERAL JUDGE

OF POSSIBLE LINKS TO ISLAMIC EXTREMISTS

By

Martin Dillon

A former White House aide with a Secret clearance warned US Attorney General, John Ashcroft a week after the attacks on the World Trade Center and Pentagon, that a Federal Judge with connections to Islamic fundamentalists, refused to authorize over 20 FBI wiretaps on Al Qaeda suspects before 9/11.

Barbara Honegger, now a Senior Military Affairs Research Journalist in the Department of Defense, named the judge as Royce Lamberth. He is the chief judge in the secret Foreign Intelligence Surveillance Court. It meets once a week in the Justice Department to consider wiretap requests.

Senator Arlen Specter, a member of the Congressional Intelligence Committee sitting in Washington to investigate the intelligence background to 9/11, has said he will call Judge Lamberth to testify.

In the Reagan Administration Honegger served as a high-level appointee in the Justice Department, heading a task force for the Attorney General.

Her bombshell claim is contained in documents Globe-Intel has seen. They confirm that her memo to Ashcroft is now under investigation by the House and Senate Intelligence Committees sitting in Washington.

Given her seniority, her claim will almost certainly fuel the controversy about the US intelligence community failure.

Judge Royce Lamberth presides over a court of seven judges set up under the 1978 Foreign Intelligence Surveillance Act. Since then it has authorized 7,500 wiretap requests. The majority have been to tap foreign embassies in the US and abroad.

Her revelations came hours after President Bush had announced (Thursday) that he was setting up a new Homeland Defense Ministry.

Washington sources have told Globe-Intel that among the first tasks the Ministry will face is to investigate Honegger’s claims.

Globe-Intel has also learned that FBI Director, Robert Mueller, personally authorized that Honegger should be questioned.

That happened on April 4 when San Diego FBI Field Agent, Sean Moore, interviewed her.

Her allegations move the story of who-knew-what- and when beyond the now celebrated thirteen-page memo veteran FBI agent, Coleen Rowley sent to Mueller.

In her lengthy memo to Attorney General Ashcroft, Honegger states:

“It is absolutely critical that Congress obtain the list of the names of the up to 20 suspected Al Qaeda and other Islamic extremist operatives whose wiretaps were shut down or refused by Judge Royce Lambert and the FISA Court and match them with the names of the 20 9/11 hijackers, as well as with the names of all post 9/11 detainees held in Guantanamo Bay, Cuba and elsewhere,”

Honegger held sensitive posts in the White House during the administrations of Ronald Reagan and George Bush snr. She is the author of a highly-acclaimed book dealing with the Iran-Contra affair.

Honegger has confirmed to Globe-Intel why she has demanded Judge Lamberth be investigated for possible complicity in the 9/11 attacks.

“On Sept. 19, 2001, a week after the attacks, I sent an "Extreme Alert"
to Attorney General Ashcroft and Thomas Picard, the FBI investigator in
charge of the New York based 9-11 investigation, by e-mail, alerting them
to evidence that the Chief Judge of this very FISA (Federal Intelligence
Surveillance Act) Court, Royce C. Lamberth, may have himself been
acting with and on behalf of Islamic extremists.

“In the mid 1980s, an Iranian fluent in Farsi, Arabic, Urdu, Russian, and a number of other languages was in frequent contact by telephone with someone he described as `my good buddy Royce, an important judge in Washington, who got me into this country.’ Further questioning of this individual, who also claimed to be a mullah able to perform Islamic marriages and funerals, led to me being told that the last name of the Washington judge was Lamberth.

“My 9/19/01 Lamberth Alert e-mail was received by
Attorney General Ashcroft and/or FBI Headquarters, as I was interviewed
by an FBI agent from a local field office regarding this communication,
at which time the agent showed me the headquarters case number
for my memo and its follow up. At my request and with his agreement,
a colleague from a federal personnel security agency sat in on that meeting
as a witness. The Congressional House and Senate Intelligence
Committees have also been made aware of these facts.

“Given this context, it is critical to the 9-11 Congressional
investigation that, prior to 9-11, this same Chief FISA Court Judge Royce Lamberth shut down "up to 20" FISA wiretaps of Al Qaeda-related suspects
linked to the near-simultaneous -- "twin" -- 1998 Africa U.S. embassy
bombings. These 20 may well be, or significantly overlap with, the 20 9-11
hijackers -- 19 plus suspected "20th hijacker," Zacarias Moussaoui.

“It is therefore absolutely critical that Congress obtain the list
of names of all of the "up to 20" suspected Al Qaeda and other Islamic
extremist operatives whose wiretaps were shut down or refused by Judge Lamberth and the FISA Court, and match them with the names of the 20 9-11 hijackers, as well as with the names of all post 9-11 detainees held in Guantanamo Bay, Cuba, and elsewhere.”

“For the 9-11 investigation to have integrity, Congress must have
the courage to aggressively pursue these facts and leads, and be sure
not to prematurely close the door to any hypothesis - no matter how
"unthinkable." 9-11 was also unthinkable -- before it happened.”

Ends

Martin Dillon is a world-ranking authority on Eastern European intelligence. He is also the author of the global bestsellers: The Shankill Butchers (Random House), The Dirty War (Random House) and God and the Gun (Routledge, New York).

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