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Disorder in the Court (FISA)
The Weekly Standard ^ | January 2, 2006 | David Tell, for the Editors

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?


TOPICS: Crime/Corruption; Editorial; Foreign Affairs; Government; News/Current Events; War on Terror
KEYWORDS: 911; bush43; domesticspying; fisa; intelligence; leak; nsa; patriotleak; spygate; spying; spyleak
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To: doug from upland

Thanks, doug. Pretty shocking to see Lamberth's name in #34.


81 posted on 12/27/2005 6:38:30 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: Peach

He always seemed like a stand up guy and no nonsense judge.


82 posted on 12/27/2005 6:40:49 PM PST by doug from upland (Hasta la vista, Tookie)
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To: Peach
I read the Third Terrorist... excellent book... also listened to her on several radio interviews and on Bill O'Reilly. Amazing how most of the MSM tried to ignore her findings -- like the Iraqi in OKC was working at Logan Airport on 911.

Don't forget TWA800 coverup -- and Jamie Goerlick's involvement in both OKC and TWA... and to make matters worse the attempted sweep under the carpet of the mysterious object shot at AA612 our of LAX right after Thanksgiving.

I looked at the flight radar and you do see the object appear on screen around the same time the pilot reported it to the tower. If I remember correctly this was around the same time a couple of guys were arrested in Long Beach area of SoCal for having illegal shoulder fired weapons.

Very strange times we live in when we have a MSM trying to help the bad guys destroy our country.

83 posted on 12/27/2005 6:42:19 PM PST by Arizona Carolyn
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To: Marine_Uncle

I don't disagree with offshore drilling, I think California should be reopened (will never happen in my lifetime) now they have the technology to cleanly drill in deep waters. Seems to me that would solve a lot of the self-inflicted financial woes of California.


84 posted on 12/27/2005 6:44:24 PM PST by Arizona Carolyn
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To: 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.


85 posted on 12/27/2005 6:45:23 PM PST by Arizona Carolyn
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To: Peach

I am going to plead extreme fatigue...if this is a stupid question...which I am thinking it is...

Is this the same judge that quit the FISA court after this leak of the wiretapping "scandal" became known by the NYTimes a couple of weeks ago?


86 posted on 12/27/2005 6:46:22 PM PST by Txsleuth (Merry Christmas everyone!!! Happy Hanukkah!!)
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To: Txsleuth

That was a different judge; Robertson?


87 posted on 12/27/2005 6:48:59 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: Peach; mystery-ak
I read basically the article that started this thread this morning and did a google on the judge's name and found the information with the Ashcroft-linked information referred to in the post #34.

The more I read on this judge the more complex he appears to be and, frankly, I'm confused by his actions; is he a no nonsense Texas Judge or ????

88 posted on 12/27/2005 6:55:53 PM PST by Arizona Carolyn
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To: deport

#34.

Judicial Watch? Ring a bell?


89 posted on 12/27/2005 6:57:15 PM PST by Howlin (Defeatism may have its partisan uses, but it is not justified by the facts. - GWB, 12/18/05)
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To: Arizona Carolyn

I'd love to know more about him; the article you linked mentioned the woman who complained about Lamberth to Ashcroft by name and she sounded like a solid person.


90 posted on 12/27/2005 6:59:57 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: Peach

Not only that, Peach. As this article states the media hailed Crowley as a hero fighting against the Bush Administration when, in fact, the wall came about in the Clinton administration.


91 posted on 12/27/2005 7:00:59 PM PST by Arizona Carolyn
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To: Arizona Carolyn

And, as some article mentioned, Crowley was hailed as a hero for suggesting the wall should be taken down.

Then Bush DID take the wall down and he's hailed as a judas.


92 posted on 12/27/2005 7:02:07 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: Peach

Oh my.

Oh my.


93 posted on 12/27/2005 7:02:10 PM PST by eyespysomething (this space intentionally left blank......oh crud)
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To: Peach

Didn't the Clinton Admin consider everything a legal matter? The way I understand what comes out of the far-left is, to this day, they believe 911 should have been handled as a legal matter.


94 posted on 12/27/2005 7:03:10 PM PST by Arizona Carolyn
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To: Peach; Txsleuth

If I was a conspiracy theorist one could become very frightened if the Lamberth info is correct and this other judge quickly resigning last week. Exactly WHO are the 11 judges on the FISA court? Do we really know?


95 posted on 12/27/2005 7:06:54 PM PST by Arizona Carolyn
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To: Peach

Exactly. Now, if only our GOP would actually hold an honest hearing on all of this while they are still in the majority, they might stand a better chance of staying in power next November.


96 posted on 12/27/2005 7:08:31 PM PST by Arizona Carolyn
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To: Howlin
Lamberth was the judge that heard a lot of Judical Watch's petitions/filings/actions. File gate, China Gate, some Linda Tripp things [I think], and more....

Lamberth.. Judicial Watch.. Klayman

97 posted on 12/27/2005 7:08:43 PM PST by deport
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To: Arizona Carolyn

I'm thinking that if Lamberth is a jihadist sympathizer, he isn't the only one.


98 posted on 12/27/2005 7:10:07 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: doug from upland

Doug, when I read the information from Judicial Watch you get one impression but read his actions on the FISA court and you get another. All-in-all, we know anyone can be bought if the circumstances are right (guess I've read too many Grishom novels)....


99 posted on 12/27/2005 7:10:19 PM PST by Arizona Carolyn
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To: Peach

That's what scares me...


100 posted on 12/27/2005 7:12:16 PM PST by Arizona Carolyn
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