Ping, in case you haven't seen it!
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Good night and good riddance to the Clinton years.
More Clinton legacy..
I hope Dom "The Hardest Working Man In Talk Radio" Giordano replays this interview on his Saturday show for those that missed it. His Saturday show airs from 12-4 PM on 1210 WPHT (barring the stupid Phillies games, of course)
bttt
Hope he does not become a 'long distance' Arkacide.
I cannot vouch for its accuracy or origins, but it sure reads like a legitimate article. The above document has a wealth of footnotes providing references for facts and quotations, which I cannot easily present here.
I notice that Clinton and Reno "went after" the intelligence capability of our federal government early on - they were apparently motivated to emasculate and ensure central control of any interesting intelligence. I also notice the unexpected deaths or departures of a surprisingly large percentage of the brain trust in the Dept of Justice. Well ... perhaps not surprising ...
This is a 44 page (as formatted by Word) document, that begins:
Mary C. Lawton—The “Career” Lawyer
Mary C. Lawton was a “force of nature.” Words like brilliant and genius, incorruptible and eccentric have all been used to describe her. Relatively unknown to outsiders, she was revered in the halls of the Department of Justice, succeeding in a field dominated by men. Today, the Justice Department’s prestigious Life Achievement Award carries her name.
Mary Lawton graduated first in her law school class at Georgetown, entered the Department of Justice in 1960 through the Honors program and quickly worked her way up the ladder, earning a slew of awards and commendations along the way. She worked under 13 different Attorney Generals, counted Supreme Court Justice Antonin Scalia as one of her former bosses, and met every president since Truman. In a book, written about the inner workings of the Department of Justice in 1996, Main Justice: The Men and Women Who Enforce the Nation’s Criminal Laws and Guard Its Secrets, Mary Lawton was described with the following words:
In the modern age of intelligence gathering and federal law enforcement, no one was more important to the management of the most critical legal issues binding the two communities than a Justice Department lawyer named Mary Lawton…Lawton was possessed of one of the most brilliant legal minds of her generation, and she used her intellect to construct the legal framework in which the nation’s spies and spy chasers were required to operate.
Lawton was the interface between the intelligence gatherers and federal law enforcement. When the FBI, the Central Intelligence Agency, the National Security Agency and the Defense Intelligence Agency had questions concerning the legality of anything dealing with intelligence issues, they headed straight to her office.
Mary Lawton was a career lawyer. But more than that, Lawton was part of a fraternity of super-senior DOJ attorneys—roughly 20—who were recognized as having more permanent influence on the DOJ than the transient political administrations that controlled the more visible positions. This “high priesthood” felt it was their mission to guard the “institutional soul of DOJ,” a mission that transcended attorney generals. In an almost prophetic statement made the year before his appointment as the FISC’s presiding judge, D.C. District Court Judge Royce Lamberth said:
The great ability of…senior career lawyers is in making sure…political leaders have the background and knowledge to make the decisions they have to make. They know how matters have been interpreted over a long time. They can tell a new administration how its positions compare to past positions and where the attacks will come from. [They] have a unique perspective in making sure the department acts in accordance with the law rather than what is politically expedient at the moment.”
Mary Lawton took that responsibility to heart and through the years earned the trust and admiration of every new administration appointee.
Among her many achievements over the years, Lawton helped write the Freedom of Information Act, headed up the committee that wrote the Levi Guidelines, drafted the original version of the Foreign Intelligence Surveillance Act, and ran the Office of Intelligence Policy and Review—the department that acted as the interface between the intelligence community and the FISC court—for almost twelve of its first fifteen years of existence. She was known as an “exacting master” who “would frequently butt heads with intelligence agencies,” but under her leadership, OIPR “earned a reputation for high standards and scrupulous integrity.”
While Lawton had spent the bulk of her career—prior to running OIPR—writing legal opinions, department guidelines and legislation, and then making the crucial rulings and decisions interpreting those provisions for the DOJ, she strongly believed that some things were better “left undefined.” Lawton never issued written guidelines for her small OIPR office of five lawyers, perhaps in part because she didn’t feel the need since she was the DOJ’s expert on FISA (and anything else having to do with the world of counterintelligence), and, if questions arose, everyone knew where to find her. “Running something by Mary” before taking action was a standard practice for the FBI, CIA, NSA and the DIA. She was known for providing “fast answers that would settle the vexing legal questions that invariably” came with the job for “investigators who chased spies and terrorists and senior managers of the nation’s foreign intelligence-gathering agencies.”
During Lawton’s tenure as Counsel for OIPR, she was also known for making sure that the FBI regularly and informally briefed the Criminal Division prosecutors to ensure that “investigative steps by the FBI would not under cut a potential prosecution and that intelligence probes would not be unduly prolonged at the expense of a prosecution.” In fact, in the very last article Mary Lawton ever wrote, which was published after her death, she noted that “attorneys from the intelligence agencies frequently consult on an informal basis with attorneys of the Department of Justice, who specialize in intelligence matters.”
There was no “wall” on Mary’s watch.
United States v. Troung Dinh Hung
Nor—contrary to the assertion by the FISCR—was the Troung case ever an issue with Lawton or the OIPR during the 1980s. In fact, as will soon become clear, senior
lawyers within the DOJ considered Troung irrelevant once Congress passed FISA.
Troung involved the authorization by both President Jimmy Carter and Attorney General Griffin Bell for warrantless electronic surveillance and physical searches of a suspected agent of the government of Vietnam and the U.S. citizen believed to be providing the Vietnamese spy with classified American documents. The surveillance occurred between May 1977 and January 1978 (prior to the passage of FISA). However, in mid July of 1977, internal DOJ documents indicated the focus of the surveillance had shifted from “gathering foreign intelligence” to discussing availability of documents and witnesses for a criminal trial. It was that shift in “purpose” that led the district court to rule that—at that point—a Title III warrant should have been secured as the “primary focus of the investigation had shifted away from foreign intelligence gathering,” noting “little by way of foreign intelligence occurred after June 1977 but the taps remained.” The court ruled (and the Fourth Circuit affirmed) that evidence secured after mid-July 1977 was suppressed as it was clear that—from that point on—the investigation had become primarily a criminal investigation and therefore the defendant’s Fourth Amendment rights had been violated (since no judge had approved the surveillance). The federal district court decision in Virginia was handed down in 1978 and the appeal was decided by the Fourth Circuit in 1980.
Troung drew a lot of attention within the halls of the DOJ for the simple reason that Attorney General Griffen Bell was forced to testify before the district court to justify the department’s actions (and his approval of the surveillance measures) at a hearing on a motion to suppress evidence obtained from the warrantless physical searches and electronic surveillance. It is unusual for an Attorney General to be subpoenaed to testify in court by the defendant, and that alone made this case standout at the DOJ. In fact, as will be shown later, it was just such a possibility—an attorney general being hauled into court again—that was instrumental in the creation of the “wall” fifteen years later.
As the Deputy Assistant Attorney General in the Office of Legal Council during the time Troung was making its way through the court system, and later as the head of OIPR, Mary Lawton knew all about Troung and its relationship to FISA. Furthermore, since Troung involved questions concerning warrantless foreign intelligence surveillance without judicial authorization—an issue at the heart of, and addressed by, the FISA legislation Lawton helped write and get passed into law—Lawton followed the case closely.
Lawton was legendary for her ability to “rattle off the history of intelligence decisions taken in past administrations…and recall with precision the positions each of the various government agencies took over the years” as well as the court decisions and laws passed that applied to the various positions espoused. Lawton put that ability on display while testifying before the House Committee on the Judiciary about FISA in 1983. In direct questioning from congressmen about the logic of Troung to the FISA process even though Troung was a “pre-FISA surveillance case,” Lawton responded, “[O]ne judge says, “Yes,” and one judge says, “No,” and then she went into a detailed explanation why, in addition to the fact that Troung was a pre-FISA case, the facts of the case alone made it rare in the world of counterintelligence surveillance:
[T]he Troung-Humphrey case, on its own facts, was more like a…case where prosecuting the two individuals wraps up the whole problem. The foreign power to which they were reporting was outside this country, there were two individuals involved…[and] no others with any connection inside this country. That fact pattern has been different from what we faced…in Provisional IRA cases, where the IRA goes on with or without the prosecution…and the efforts to purchase guns go on. So, on its facts,Troung may be distinguishable, besides the whole issue of pre-versus post-FISA.
Lawton was then asked point-blank if it wouldn’t “be more appropriate for a Title III warrant to be required rather than continue [with] a foreign intelligence surveillance warrant…when “the focus of the investigation” changes “from intelligence to criminal?” She responded:
Generally speaking, these continue to be intelligence cases. Several of the cases that I cited in the circuits, the criminal information was purely incidental to an intelligence investigation. In others, even in the international terrorism cases which are more likely to go to prosecution, the apprehension of a single terrorist does not …stop the international terrorist organization…We have a broader intelligence interest in the entire international terrorism framework than we do in the prosecution or not of that individual, so that the intelligence needs and the intelligence purpose continue even though there may be a prosecution
Lawton went on to say:
As you are well aware, we have had the argument made in litigation that there should come a time when you convert from FISA to Title III if you believe there is going to be a prosecution. We have yet to see a fact pattern, nor have the courts, where that has been the case. I’m not ruling it out as a possibility. With a single target with no other ramifications, it is possible that the prosecution of that one individual would end our interest. In that case, it is possible that we would have to go to Title III. But, up to now, that has not been the fact pattern.
Lawton made it clear that Troung, in her opinion, had been a rare anomaly in the world of counterintelligence.
As previously mentioned, Lawton was the second person to take over the reins of OIPR. However, there was no chance that the department’s first boss misunderstood the importance of Troung either. Ironically, Kenneth C. Bass III, the man who created and was the very first head of OIPR, not only was aware of Troung, he was intimately involved with the case. During the late 70s, Bass was a senior lawyer in the Office of Legal Counsel (along with Mary Lawton) and personally argued the Troung appeal for the government before the Fourth Circuit. In testimony before the Senate Oversight Committee in September 2002 (two months before the FISCR issued its opinion) Bass talked about his role in creating, and being, the first head of the Office of Intelligence Policy and Review, and the relevance—or lack of relevance—of Troung to OIPR’s procedures. Bass was clear that he never considered Troung applicable to the FISA process:
The Troung decision involved searches and surveillances undertaken without any prior judicial approval…and was concerned with the limits of warrantless surveillance in a prosecution context. That concern is absent whenever a FISA order has been issued…since FISA searches have been authorized by an Article III judge under the FISA procedures. Thus the basis for concern about the “primary purpose” of an FBI surveillance is not present when a FISA order has been obtained.
Bass told the committee that he and his staff in OIPR:
[W]ere totally comfortable with an understanding that if the purpose for undertaking the surveillance was to gather information about the activities of agents of foreign powers that was not otherwise obtainable, then “the purpose” of the surveillance was to gather foreign intelligence…Dissemination and use of the information for criminal law enforcement purposes was expressly authorized by FISA and that use did not, to us, affect “the purpose” of the surveillance… Counterintelligence investigation of U.S. persons always contemplated a possible criminal prosecution.
Bass went on to tell the Senate Oversight Committee that the “key provision” for him in FISA was actually the “certification language” restricting the authorization authority to Executive Branch officials “employed in the area of national security” and requiring the personal approval and signature of the Attorney General certifying that the request was for foreign intelligence purposes. Only then would the request be submitted to the FISC. That authorization process, Bass said, was a direct response to the U.S. Supreme Court’s ruling in Keith that surveillance of domestic organizations which had no significant connection to a foreign power, its agents or agencies without a warrant, was unconstitutional. For Bass, any lingering questions concerning the constitutionality of counterintelligence surveillance was settled once and for all when FISA was passed establishing the Foreign Intelligence Surveillance Court (FISC) to issue judicial orders for national security investigations.
The same was true for Mary Lawton. In her last public comments about FISA, in an article written by her and published after her death, Lawton took great pains to detail the FISA authorization process noting that:
When setting the requirements for agency head certification and approval, Congress was well aware that this would entail multiple levels of review within the agencies concerned…ensuring extensive review and fixed accountability. The head of the relevant intelligence agency…and the Attorney General of the United States must [each] certify personally that the purpose of the application [to the FISC] is to collect foreign intelligence. [F]inally, the judge must sign the order authorizing the surveillance.
According to Lawton, the rationale behind the time-consuming approval process was simple:
The conscious use of bureaucratic processes is the principal preventive measure…[against] ill-conceived or abusive use of intelligence agencies. It…not only force[s] careful consideration in advance of intelligence operations, but also document[s] the action taken and the person responsible, for later review.
It is clear that, contrary to the FISCR’s assertion, Troung was a non-factor at the Justice Department (and particularly within the OIPR) during the 1980s. The FISCR was wrong. Neither Kenneth Bass III nor Mary Lawton—the only people in charge of OIPR from its creation in 1979 until 1993—ever considered Troung relevant to FISA nor did they ever advocate any kind of “wall.” Communication between the DOJ’s law enforcement and intelligence agencies was routine on their watch. The “wall” came later—along with the incorrect analysis of the importance of Troung to the FISA process—for one simple reason. Mary Lawton died.
MARY’S DEATH AND THE “WALL”
In mid October of 1993, Mary Lawton had routine back surgery. While recovering at home from the operation, she died unexpectedly of a cerebral embolism. The “grand old lady of intelligence law was gone.” 33 years of intelligence expertise was wiped out in an instant. Lawton’s death left a “gaping hole” in the intelligence community and it couldn’t have happened at a worse time. As John Lewis, then FBI chief operations officer for national security investigations put it, after Mary Lawton died, everything “changed overnight.”
A turf war erupted. There was talk of carving up the OIPR office; placing its FISA review responsibilities in the Criminal Division and its policy operation in the Office of Legal Counsel. As will be explained in detail later, Lawton’s replacement was determined not to let that happen, and sought to ensure the survival of the office by expanding its authority.
To make matters worse, Lawton’s death wasn’t the only blow the Department of Justice suffered. In the span of the next 12 months, 6 of the 20 so-called “super-senior career attorneys” at the Department of Justice either died or left the DOJ. Every litigation division, except the Criminal and Civil Divisions, lost their senior career official. It was the passing of a generation—a critical brain-drain—and led future FISC Chief Judge, District Court Judge Royce Lamberth, to make yet another prophetic statement: “The loss of institutional knowledge will be difficult to replace.” He was right.
The jockeying for power began in earnest.
When the dust settled two years later, the Troung analysis and the “wall” were adopted as official department policy. They were the cornerstone of Attorney General Janet Reno’s 1995 Guidelines establishing “new rules of conduct for FBI agents and Criminal Division lawyers working on counterintelligence investigations and employing electronic surveillance under the FISA statute.” Contact, which had been routine under Lawton, was now banned.
Why the “Wall” Was Created
In 1993, the FISA process only covered electronic surveillance for intelligence purposes. If a physical search was needed, the buck still stopped at the Attorney General’s office for approval of the warrantless intrusion. Consequently, if there was ever a question about the validity of a physical search, the Attorney General who authorized it was still subject to lawsuits and being subpoenaed as a witness by the defense—just like Griffin Bell had been in Troung in 1978.
There had been discussion within OIPR and the DOJ that the original FISA statute did cover physical searches and, in fact, under the Carter Administration, Kenneth Bass’s OIPR office sought and obtained three physical search orders from the FISA court. However, those approvals became somewhat controversial within and without the DOJ. Bass recalled that “some officials in the Intelligence Community were concerned that we were ‘going too far’ in involving the judiciary in sensitive matters” and “some Members of Congress were concerned that we were ‘amending the statute through executive action.’” Eventually, some of the FISA judges became “troubled by congressional reaction and began to question whether it was wise to continue to authorize physical searches.”
When the Reagan Administration took office they “came to a different conclusion” and took the position that the previous Administration, Bass and the FISA Court had been wrong as a matter of law. They also decided it was important to wipe out previous FISA search precedents, so, the first time “they were faced with the necessity of a physical search for intelligence purposes [in the spring of 1981], they prepared an application for a FISA Court order, but submitted it with a memorandum explaining that they did not believe the FISA Court had any jurisdiction to issue such orders.” There was no competing argument made, the application was not “subjected to the normal adversarial process,” and was instead “referred to the clerk of the FISA Court” who prepared a memo agreeing with the Re[a]gan Administration’s position.” The FISC agreed and issued its first formal order ever stating simply that it did not have jurisdiction over intelligence physical searches. For FISA to include physical searches, the statute would have to be amended.
But neither the Reagan Administration nor the Bush Administration aggressively pursued expanding FISA authority to cover physical searches—they didn’t see the need, and, in fact, believed it would be an improper encroachment on executive branch authority. Consequently, FISA wasn’t expanded to include physical searches until 1994 when the push for congressional approval was motivated by the following events—the same events that lead to the creation of the “wall.”
The “Wall” is Born
Just prior to Mary Lawton’s back surgery, her office recommended that President Clinton’s Attorney General Janet Reno authorize the warrantless search of a home owned by CIA officer and suspected spy Aldrich Ames (Ames was already under a FISA-approved electronic surveillance order). Reno approved the request based on her own (i.e., the executive branches) “inherent authority” for national security purposes. And even though the affidavit for the physical search would not be submitted to the FISC for approval, the certification process within the DOJ and OIPR followed the same chain of command procedure as that for FISA approved electronic surveillance.
Like attorney generals before her, Janet Reno trusted Mary Lawton. Reno had only been appointed to the position in February of 1993 but it didn’t take her long to realize that Lawton “carried the [DOJ’s] secrets around in her head” and could put every intelligence issue into proper legal context. Reno was also intimately familiar with the Ames case—she had previously authorized the application for a FISA electronic surveillance order—so when the OIPR presented her with the Ames search application she signed off without hesitation.
Less than two weeks later, Lawton was dead and the void left by her passing was devastating. Lawton had written or interpreted almost every law or policy governing the shadowy world of foreign intelligence surveillance for three decades. She was considered such an authority at the DOJ that counterintelligence rules simply became known as “Mary’s Law.” Unfortunately, Lawton had always been so busy that she didn’t leave a paper trail explaining the basis for her rulings. Furthermore, Lawton’s belief that some things were better left undefined, combined with her lack of OIPR guidelines covering internal operations (including her routine practice of informal contacts between the FBI and internal security prosecutors), while not an issue when she was alive, became critical after her death. FISA and OIPR practices were left vulnerable to conflicting interpretations.
Instead of promoting someone from within the OIPR—a “career lawyer” with prior FISA and counterintelligence experience—to replace Mary Lawton, Janet Reno made a selection that led to a seismic shift in FISA interpretation and DOJ policy. Reno turned to Richard Scruggs, one of five special assistants she had brought with her from Florida, to be Lawton’s successor.
Richard Scruggs was a former federal trial prosecutor who began his career in the Justice Department under the Honor’s Program and spent several years in the Internal Security Section in the Criminal Division before moving to Florida to work as an assistant U.S. attorney in Miami. Scruggs had an enormous amount of experience as a trial prosecutor and had supervised the Criminal Division in the U.S. Attorney’s Office in Miami (the largest in the country), but he had relatively little experience in foreign counterintelligence matters. In the six months Scruggs had been working for Reno he had handled some intelligence issues, but the bulk of his time had been spent attempting to coordinate a merger of the FBI and the Drug Enforcement Administration. That merger fell through right before Mary Lawton died.
Once Scruggs took over the OIPR, he began to familiarize himself with office operations by reviewing cases and talking to Lawton’s former aides. In looking over the case files he began “catching mistakes” which he attributed to the massive volume of FISA applications handled by the tiny office. Scruggs became increasingly concerned by (1) the lack of written guidelines, (2) a proposal that was circulating to “carve up Lawton’s staff,” and (3) alarmed over contacts between prosecutors and FBI agents that he thought were improper—he was convinced the FISA statute might have been violated.
Scruggs was especially concerned about the physical search on the Aldrich Ames house that Reno had approved just prior to Lawton’s death. Scruggs had done some research and was aware of the pre-FISA Troung case. After reading a Washington Post article about questions asked during Ames’ bond hearing, Scruggs became convinced that Ames’ attorney, Plato Cacheris, might be planning to challenge the legality of the warrantless physical search “by arguing that the ‘primary purpose’” of the surveillance had shifted from intelligence gathering to criminal prosecution—an analysis based on Troung.
Internal DOJ documents reveal that a worried Scruggs went to Reno and “ginned her up” about “contacts that the FBI had been having with prosecutors” and warned her that—like Griffin Bell in the Troung case—she might be called as a witness since she had authorized the search. Scruggs also told Reno he believed there was a strong possibility the evidence could be suppressed. Reno was not pleased. She had been on the job for barely a year, had already weathered the tragic Branch Davidian fire in Waco, Texas, and was in no mood to hear that there might be problems with yet another high-profile case. She told Scruggs, “Don’t let this happen again.”
Scruggs went to work drafting a set of guidelines that mandated OIPR be the only conduit for contact between the Criminal Division and counterintelligence agents, and then sent out the “word…that there were to be no further contacts with prosecutors in foreign counterintelligence cases without OIPR permission.” John L. Martin, the FBI agent overseeing the Ames investigation in 1993-1994, was convinced the FBI had done nothing wrong and there was no danger of the evidence being suppressed but, “Turf,” he later remarked, “is the biggest four-letter word in this town.” Scruggs argued differently and he had the ear of the Attorney General. In the end, Scruggs’s guidelines were implemented staking out a huge amount of “turf” for OIPR, securing the survival of the office and greatly expanding its authority within the halls of the DOJ. From that point on the informal “backdoor” channel between the FBI and the Criminal Division was closed.” Any contact had to go through OIPR.
The “wall” was born.
The dramatic changes in OIPR procedures following Mary Lawton’s death are well documented in a 778-page DOJ internal report written by federal prosecutor Randy Bellows (commonly referred to as the Bellows Report) which investigated the FBI’s later bungling of the Wen Ho Lee FISA investigation, The report was completed in May of 2000, portions of which were released to the public in August of 2001. The Bellows Report clearly identifies Lawton’s successor, Richard Scruggs, as the person instrumental in erecting the “wall.”
A Katrina-sized bump. . .
Outrageous that the "Defense & Intellignece" bureaucracy cares more about poitical PR than National Security!
ATTENTION SANDY BURGER:
Was that a pickle in your pants or were just glad to see me?
Love,
HILLARY
Tonight C-SPAN or C-SPAN II they were replaying part of the 9/11 dog & pony shows from just last month but after the revelations of the last few weeks the hearing plays like a kinoscope of an old boxing match or college football game. Can C-SPAN be pushing the 9/11 Committees face in it?
I certainly hope that this will be pursued and investigated fully. The people have a right to know exactly what happened. It does not matter which party was in charge.
To not pursue this would be failing the American people. We have a right to know what happened.
While much of what Weldon will say is probably extremely important, the fact that the data was ordered destroyed is nothing more than the end result of Gorelick's policy!
It is of little or no signifigance WHO ordered the data destroyed / when the order was given!
The very fact that the lawyers, based on Gorelick's policy, determined that the information was illegally obtained, i.e. it is forbidden to collect data on "US Persons" and Atta & Co. were legally "US Persons" - the information, by law must be destroyed.
According to Title 50 USC 1801:
"(i) ``United States person'' means a citizen of the United
States, an alien lawfully admitted for permanent residence (as
defined in section 1101(a)(20) of title 8), an unincorporated
association a substantial number of members of which are citizens of
the United States or aliens lawfully admitted for permanent
residence, or a corporation which is incorporated in the United
States, but does not include a corporation or an association which
is a foreign power, as defined in subsection (a)(1), (2), or (3) of
this section."
This restriction has been a thorn in our side since the early 70's (officially 1978 in the FISA and then through EO 12333 from 1982). The military was much MORE restricted in thier efforts than were the NSA, CIA and, to a lesser extent the FBI. Collecting information regarding US Persons was more or less prohibited to the military (actually you COULD collect, but the hurdles that needed to be overcome where enormous and any attempt to do so was met with very harsh resistance from the higher levels of the command structure!). "Gorelick's Wall" just made it all that much harder!