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Did the FISA court Stop Us From Connecting the Dots?
American Thinker ^ | 01-03-06 | Teri O'Brien

Posted on 01/03/2006 10:50:39 AM PST by smoothsailing

Did the FISA court Stop Us From Connecting the Dots?

By Teri O'Brien

Jan. 3, 2006

Ever since the New York Times revealed the horrifying news that President Bush authorized the National Security Agency to monitor both sides of conversations that involve known al Qaeda operatives, the usual chorus of carping critics has whined incessantly "Why didn't they just go to the FISA court?" They proceed to robotically recite a meaningless statistic, purporting to demonstrate that this super-secret court, authorized by the Foreign Intelligence Surveillance Act of 1978, is a "rubber stamp."

For example, on NBC's Meet the Press on Sunday, January 1, 2006, the venerable William Safire said

"and I think what's happening now is that the—as a result of that scandal back in the '70s, we got this electronic eavesdropping act stopping it, or requiring the president to go before this court. Now, this court's a rubber-stamp court, let's face it. They give five noes and 20,000 yeses."

Ah, but there are "no's," and there are "no's," as I discovered while researching the post-9/11 history of the FISA court, and even more interesting, the media's reporting of it.

Consider the piece "What Went Wrong," by Michael Hirsh and Michael Isikoff, Newsweek, May 27, 2002.   Amid the predictable gratuitous jabs at John Ashcroft and attempts to rehabilitate the failures of the Clinton administration, we learn some reasons we may have failed to connect the dots, including the sickening revelation that the FBI ignored the now-famous Phoenix memorandum due to concerns about racial profiling. Then there's this very disturbing, and suddenly newly relevant, paragraph:

"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."

Just in case you missed that last sentence, please read it again. Better yet, memorize it and recite it to anyone who has the audacity in the days to come to ask "Why didn't President Bush just go to the FISA court?


TOPICS: Foreign Affairs; Government; News/Current Events; War on Terror
KEYWORDS: fisa; homelandsecurity; patriotleak; spying

1 posted on 01/03/2006 10:50:40 AM PST by smoothsailing
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To: smoothsailing

EPIC and the EFF have a slew of FOIA documents that reflect some serious dysfunction between the various arms of investigative bureaus. And I'm sure the FISA courts were part of the problem. THe FISA review court's "In re: Sealed Case" did, after all, reverse previous FISA court holdings.


2 posted on 01/03/2006 10:55:50 AM PST by Cboldt
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To: Cboldt

Judge Royce C. Lamberth

Judge Lamberth received his appointment to the United States District Court for the District of Columbia in November 1987. He was appointed Presiding Judge of the U.S. Foreign Intelligence Surveillance Court in May 1995 by Chief Justice Rehnquist. Judge Lamberth graduated from the University of Texas and from the University of Texas School of Law, receiving an LL.B. in 1967. He served as a Captain in the Judge Advocate General’s Corps of the United States Army from 1968 to 1974, including one year in Vietnam. After that, he became an Assistant United States Attorney for the District of Columbia. In 1978, Judge Lamberth became Chief of the Civil Division of the U.S. Attorney’s Office, a position he held until his appointment to the federal bench.


3 posted on 01/03/2006 11:07:33 AM PST by EQAndyBuzz ("We don't need POLITICIANS...we need STATESMEN.")
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To: EQAndyBuzz
Lamberth may not be the usual imbecile liberal (from his background he doesn't appear to be), but that just shows even more how foolish it is to allow lawyers and judges and civil standards to be in the driver's seat in the War on Terrorists. Even if Lamberth were 100% correct about any problems with FISA petitions (and I suspect he was just being needlessly bureaucratic and legalistic), only a few weeks, at most, should be permitted for any review and revision of procedures. The usual civilian bureaucratic standard of devoting a year (or many years) to revamping procedures is simply not acceptable when dealing with terrorists constantly striving to kill us. The fact that the investigations of the 1998 bombers and any new Al Qaeda leads were so greatly hampered by Lamberth's tantrum is simply UNACCEPTABLE, and it doesn't matter whether he was appointed by President Reagan or anyone else.

"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."
4 posted on 01/03/2006 11:27:39 AM PST by Enchante (Democrats: "We are ALL broken and worn out, our party & ideas, what else is new?")
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To: smoothsailing
Did the FISA court Stop Us From Connecting the Dots?

Well, yes, and after four years and three months, I am STILL waiting for the name of the criminal responsible.

I don't for a minute buy the theory that it was a committee decision!

5 posted on 01/03/2006 12:04:54 PM PST by Publius6961 (The IQ of California voters is about 420........... .............cumulatively)
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To: smoothsailing
Why didn't President Bush go to FISA? Because it was not required, Period! It is like asking why a driver didn't stop at a green light.


EXECUTIVE ORDER 12949

- - - - - - - FOREIGN INTELLIGENCE PHYSICAL SEARCHES




By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches:

(a) Secretary of State;

(b) Secretary of Defense;

(c) Director of Central Intelligence;

(d) Director of the Federal Bureau of Investigation;

(e) Deputy Secretary of State;

(f) Deputy Secretary of Defense; and

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate.

WILLIAM J. CLINTON
THE WHITE HOUSE,
February 9, 1995.
6 posted on 01/03/2006 12:17:09 PM PST by mnehring (“Anybody who doesn’t appreciate what America has done and President Bush, let them go to hell”...)
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To: mnehrling

" EXECUTIVE ORDER 12949
FOREIGN INTELLIGENCE PHYSICAL SEARCHES'

Can you tell me how this applies to wiretaps? Just simply seeking information not a fight!


7 posted on 01/03/2006 12:39:53 PM PST by swmobuffalo (the only good terrorist is a dead one)
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To: swmobuffalo

The courts have determined that there is no difference between physical searches and electronic eavesdropping.


8 posted on 01/03/2006 12:50:52 PM PST by NeonKnight (Republican Death Machine)
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To: mnehrling
You must keep this pre-loaded for FISA threads, I saw it a little while ago on my "Connecting the Dots" thread.

Good post, nonethless! :)

9 posted on 01/03/2006 1:36:43 PM PST by smoothsailing
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To: smoothsailing
Yep, all other arguments are mute if it was perfectly legal.

Too many are only reading the original FISA text and not the amendments to it.
10 posted on 01/03/2006 1:38:13 PM PST by mnehring (“Anybody who doesn’t appreciate what America has done and President Bush, let them go to hell”...)
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To: swmobuffalo
In this case, you don't look at this as a 'wiretap' as this is data mining. There isn't a physical tapping of lines. Instead, follow the legal definition of 'information' that the EO gives the right to acquire. There are also SCOTUS rulings that clarify that eavesdropping are equivalent to 'physical searches' as stated in this amendment.
11 posted on 01/03/2006 1:40:36 PM PST by mnehring (“Anybody who doesn’t appreciate what America has done and President Bush, let them go to hell”...)
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To: smoothsailing
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

can you clarify, as obviously Reno was AG through 2000.

12 posted on 01/03/2006 5:33:16 PM PST by gusopol3
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