Dec 22 2005
More FISA Madness On The Left
Updates at end
I find it strange the left has taken the subject of tracking possible Al Qaeda operatives, supporters or victims in the US as the cause to impeach Bush. Somehow they have concluded that if contacts with Al Qaeda make it to our shores, they are free to communicate and coordinate their plans. I think it is clear to all, if FISA could handle the need, FISA would be used to address the problem. The fact people knew for years there was an emergency procedure for circumventing FISA (for some period of time) for those situations when known terrorists were conducting communications with people in the US seems to spread the responsibility around quite a bit.
Well, whatever the logic to the madness, the madness continues. The desperate need to impeach Bush has caused the left to overstep and get themselves into a terrible position. Not only are they trying to impeach Bush for finding terrorist contacts living in our neighborhoods, but they alerted all these terrorist contacts of what we were doing to watch them – and now they have gone underground.
I do not have the transcript, but Sen George Allen said last night on Hardball that there had been a change in communications strategies by the terrorists due to the news being leaked, and the intel coming in had been impacted. The NY Times better pray that no attacks come of this news. But a normal response by the terrorists would be to accelerate their timelines because the Feds probably mobilized immediately to bring them in. This is not some partisan game the left is playing – it is deadly serious. Politically they are toast. Now the question is are the legally in jeopardy as well.
Some interesting news came out late last night at the Washington Post. Seems the NSA process was only known to the lead FISA judge and that there probably were NSA monitors brought to FISA for verification of cause.
The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush’s domestic spying program, according to several intelligence and government sources.
…
As it launched the dramatic change in domestic surveillance policy, the administration chose to secretly brief only the presiding FISA court judges about it. Officials first advised U.S. District Judge Royce C. Lamberth, the head of FISA in the fall of 2001, and then Kollar-Kotelly, who replaced him in that position in May 2002.
Why there is any issue regarding a crime if the surveillance is, ultimately, confirmed to be of probable cause by FISA is just plain silly. These people simply want to either make a stink or feel their power is being usurped. Personally I would rather Al Qaeda’s contacts in the US be monitored and their plans foiled.
Sadly enough, the remaining naysayers on the FISA court are leftward appointees [emphasis mine]:
Some of the judges said they are particularly concerned that information gleaned from the president’s eavesdropping program may have been improperly used to gain authorized wiretaps from their court.
…
Benson said it is too soon for him to judge whether the surveillance program was legal until he hears directly from the government.“I need to know more about it to decide whether it was so distasteful,” Benson said. “But I wonder: If you’ve got us here, why didn’t you go through us? They’ve said it’s faster [to bypass FISA], but they have emergency authority under FISA, so I don’t know.”
That would be Judge Dee Benson who “doesn’t know”. Judges are experts in law, they are not very good at technology and science. More on that in a moment. But Benson looks to lean a bit left. So be it. If they need some explanation as to why their process can be circumvented with modern technology, maybe it will be a humbling experience for them. The other fence sitting judges on the court have similar left leaning hesitations:
District Judge George Kazen of the Southern District of Texas said in an interview yesterday that his information about the program has been largely limited to press accounts over the past several days.
“Why didn’t it go through FISA,” Kazen asked. “I think those are valid questions. The president at first said he didn’t want to talk about it. Now he says, ‘You’re darn right I did it, and it’s completely legal.’ I gather he’s got lawyers telling him this is legal. I want to hear those arguments.” Judge Michael J. Davis of Minnesota said he, too, wants to be sure the secret program did not produce unreliable or legally suspect information that was then used to obtain FISA warrants.
“I share the other judges’ concerns,” he said.
Both of these are leftward leaning judges. Why are the only judges with a problem leftward leaning judges? If this is such a clear legal issue, there would not be this partisan divide? Why is it Davis, Kazen and Robertson are all appointees by Clinton or Carter? How is it these judges are not aware of the long precendence of warrantless surveillance?
BTW, membership on the court should not be public knowledge. Knowing who is on it represents another security leak in the press.
Anyway, there was some good information on why FISA cannot work in the initial phases:
One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.
“For FISA, they had to put down a written justification for the wiretap,” said the official. “They couldn’t dream one up.”
The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.
“There is a difference between detecting, so we can prevent, and monitoring. And it’s important to note the distinction between the two,” Bush said Monday. But he added: “If there is a need based upon evidence, we will take that evidence to a court in order to be able to monitor calls within the United States.”
We shall see how this pans out. But any answer that says once here in the US Al Qaeda contacts have more freedom to communicate and coordinate undetected is the wrong answer. We should impeach people for that kind of thinking – not the opposite.
I see my theory that FISA judge Robertson’s resignation may have to do with the fact he was part of the leak is gaining support. Clarice Feldman has an excellent piece in American Thinker on the subject:
Liberal fantasies of Karl Rove being frog-marched in handcuffs for leaking classified information may turn into a nightmare of prominent liberals being prosecuted for damaging the fight against al Qaeda via leaks of classified data. There are no names on the public record yet, but somebody leaked the classified information about NSA surveillance to James Risen of the New York Times, and a year later his paper published the story.
The pieces falling in place are far from conclusive, but they are mighty suggestive.
President Bush believes that the national interest has been harmed. In all probability, gears are turning right now for a criminal investigation leading to a possible a possible felony prosecution. Others are noting, as AT did last Sunday, that at the demand of the left itself, precedents have been set that could ensnare not “evil Republicans,†but “virtuous liberals†who think of themselves as whistleblowers.
A great read. Thanks Clarice for the mention. But if you want to be chilled about what just happened, Clarice links to this Jack Kelley article:
The intercept program has uncovered al Qaida plots, and public exposure cripples it, Air Force Gen. Michael Hayden said at a news conference Monday. Now deputy director of National Intelligence, Hayden was head of the NSA went the intercept program was started.
Among the plots uncovered was one by Iyman Faris, a naturalized U.S. citizen living in Ohio, to blow up the Brooklyn bridge, sources say. Faris discussed the plan on the phone with Khalid Shaikh Mohammed, then al Qaida’s operations officer.
Alter and others in the news media assert the intercept program is illegal, and unprecedented. It is neither.
That was before the NY Times tipped them off.
Michelle has a great set of take downs on George Will – who is completely off base and naive on this subject – the left here.
UPDATE:
Checkout Mac Ranger’s review of Judge Robertson, and his call for Senator Rockefeller to step down for leaking national security secrets and endangering the country (a call I second).
And here Howard Fineman where the leak may have come from by identifying those who knew about the process. Of course Fineman misses the point on why we want the government to find Al Qaeda contacts in the US. We want to know if there is Al Qaeda nearby, the Feds have a prayer of catching them before they attack a school or shopping mall or our water supply.
UPDATE II:
Is anyone surprised that Judge Robertson, candidate for leaking to the NY Times and recenlty resigned from the FISA court – is involved with the Web Hubbell case? He is one of the ‘Magnificent Seven’ who were wired anti-Clinton cases to rule on, and be consistently over ruled but creating delays in the investigation. If the man was playing politics with Clinton, it is easy to see him playing politics with national security.
UPDATE III:
Check out Tom Maguire’s excellent round up here.
UPDATE IV:
More here on Robertson. He does appear to have all the makings of a leaker to the NY Times.
UPDATE V:
Flopping Aces has the Hardball transcript with Sen George Allen and Andrea Mitchell here. John Hindraker at Powerling delivers a legal tour de force on the question of legality on the NSA surveillance program.
As I posted yesterday on this subject matter, I still believe this is a “technology†issue and not about FISA warrants and domestic wiretapping as the MSM would like us to believe. It is impossible to get a warrant in “real time†using an automated interceptor program. During the President’s radio address on Saturday he had a slip of tongue and said “NASA†instead of “NSAâ€. This NewsMax article Report: Justice Department Probing Durbin, Rockefeller CIA Leak mentions a “secret “black ops” CIA satellite programâ€:
On a related matter to NSA wiretaps: Is this LA Times article â€Officials Fault Case Bush Citedâ€, simply piling on the “Bush Lied†mantra and feeling left out of the NSA wiretap debate or is this new news? I don’t remember the 911 report saying this:
The LA Times blames the “Gorelick wallâ€. If this is article is true and we had these “hot†phone numbers since 98’, why in the hell didn’t Clinton give the order to take them out? I have long suspected Sandy Berger was removing data about some black ops program such as Echelon/Able Danger type project.
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AJ–
Very inteeresting post, AJ. It is scary that some politicians are so selfish and careless with people’s lives.
I don’t like to think any American would do this; but they did.
And Rockefeller was already in trouble for leaking about the satellite program. Whose side is he on?
Is Judge Robertson The Leak?
I can tell you one thing. If we get attacked once more and it comes out that we were hampered in stopping that attack due to this recent revelation, god help the NYTs and this leaker.
…
[…] Oh yeah, call this guy James “Fonda” Robertson. He’s a zealot, and as AJStrata first surmised most probably the leaker. […]
Great work on this AJ–I am just stunned that when “cut-and-run in Iraq” didn’t work out for them as a national strategy the Dems turned to “Impeach the President for fighting the terrorists.” Do you think Rove just stares at the tv screen in disbelief?
I’m pretty much out of here ’til Monday, but all best Christmas wishes to you and yours! AE
There’s a lengthly discussion on this topic over at Winds of Change:
Here
I was going an excerpt of a piece I wrote in 04 but A.L. has closed it for now as it was degenerating and getting a little too personal.
I just posted it at Blackfive in a related thread:
The Traditional Law Enforcement/Criminal Justice System Paradigm Is Ill Prepared to Fight this War On Terror –
What Should Our Domestic Rules of Engagement be?
Ooophs sorry forgot to give the link to Blackfive:
Here
AJ and all posters–
Have a Merry Christmas, Season’s Greetings, and Happy New Year.
I will be around if anything is posted.
[…] Strata says this: Well, whatever the logic to the madness, the madness continues. The desperate need to impeach Bush has caused the left to overstep and get themselves into a terrible position. Not only are they trying to impeach Bush for finding terrorist contacts living in our neighborhoods, but they alerted all these terrorist contacts of what we were doing to watch them – and now they have gone underground. […]
Snapple,
Have a Merry Christmas!
AJStrata
A NATION CHALLENGED: THE INVESTIGATION; Officials Say 2 More Jets May Have Been in the Plot
The New York Times September 19, 2001 Wednesday
Late Edition – Final
SECTION: Section B; Column 5; National Desk; Pg. 1
LENGTH: 1452 words
HEADLINE: A NATION CHALLENGED: THE INVESTIGATION;
Officials Say 2 More Jets May Have Been in the Plot
BYLINE: By DAVID JOHNSTON and JAMES RISEN
DATELINE: WASHINGTON, Sept. 18
BODY:
Federal authorities said today that they were investigating the possibility that terrorists might have plotted to commandeer two more commercial flights on the day that four planes were hijacked and used in attacks on New York and the Pentagon.
Law enforcement officials said they were taking the possibility of other hijack targets seriously, based on information from several sources, including citizens’ tips and information from cooperating witnesses.
One flight under investigation is American Airlines Flight 43, which left Newark International Airport about 8:10 a.m. bound for Los Angeles; it made an emergency landing in Cincinnati after the government ordered all flights grounded.
The other flight is American Airlines Flight 1729 from Newark to San Antonio via Dallas that was scheduled to depart at 8:50 a.m. and was later forced to land at St. Louis.
Attorney General John Ashcroft acknowledged that the authorities were investigating whether other aircraft besides the four might have been targeted. But, Mr. Ashcroft added, “we are not able at this time to confirm that.”
Mr. Ashcroft said that 75 people who might have information in the case were in custody on immigration charges, and reports of new arrests came in today from Los Angeles, Detroit and Orlando, Fla.
As investigators continued to make arrests and conduct searches, law enforcement officials acknowledged that the F.B.I.’s efforts to conduct electronic surveillance of foreign terrorists in the United States had been troubled in recent months, prompting an internal inquiry into possible abuses.
Justice Department and F.B.I. officials, who acknowledged the existence of the internal investigation, said the inquiry had forced officials to examine their monitoring of several suspected terrorist groups, among them Al Qaeda, the network led by Osama bin Laden, and Hamas, the militant Palestinian group. Al Qaeda is the group that President Bush and others have cited for last week’s attacks.
Senior F.B.I. and Justice Department officials said that they had not allowed the internal investigation of terrorism-related wiretaps to affect their ability to monitor Al Qaeda or Hamas. But other officials said the inquiry might have hampered electronic surveillance of terror groups.
The matter remains highly classified.
The officials said the internal inquiry was opened in part because of legal problems arising from the government’s investigation into the 1998 bombings of two American Embassies in East Africa, involving Al Qaeda members
Today, law enforcement officials said that the evidence of a broader plot in the airliner hijackings was suggestive but inconsistent. In the case of American Airlines Flight 1729, the authorities have detained two men from the flight who were arrested aboard an Amtrak train in Fort Worth after their flight had been forced to land in St. Louis. The two men, identified as Ayubali Ali Kahn and Mohammed Jaweed Azmath, were the only people aboard the flight who appeared to be suspicious; each of the other flights had hijack teams of four or five men.
A senior F.B.I. official said today that the authorities were examining hundreds of e-mail messages to and from the suspected hijackers and their known associates.
The messages were mainly in English and Arabic, said the official, who would not describe the content aside from saying that the messages were provided by large Internet service providers.
American intelligence officials also said today that they had received a report that Mohamed Atta, a suspected hijacker on American Airlines Flight 11, which struck the World Trade Center North Tower, met several months ago with an Iraqi intelligence official in Europe. The American officials said the report of the meeting had been received in the last few days.
The officials said they were not sure of the purpose of the meeting, if it did occur, and were investigating the possible connection. They emphasized that it did not prove that Iraq played a role in the attacks.
In addition to the two men who were arrested on the Amtrak train and taken to New York as material witnesses in the investigation, federal agents have also taken to New York for questioning a man who was arrested in Minnesota in mid-August on a passport violation after he sought training on a airplane flight simulator.
The man, Zacarias Moussaoui, apparently raised suspicion at the Pan Am International Flight Academy in Eagan, Minn., although officials with the academy have declined to describe why.
Within days of Mr. Moussaoui’s arrest, federal agents showed up at the Airman Flight School in Oklahoma, where he had enrolled earlier in the year, said Dale Davis, director of operations at the flight school. Mr. Davis said the agents took copies of Mr. Moussaoui’s immigration form and asked, among other things, whether Mr. Moussaoui had ever made anti-American statements. Mr. Davis said he told the agents that Mr. Moussaoui had not.
At the same time, investigators appeared to be uncertain about the scope of the entire operation, particularly in cities outside the Northeast. Several connections to San Antonio have been developed.
Albader Alhazmi, a 34-year-old radiologist from San Antonio, is being held in New York as a material witness, one official said. Dr. Alhazmi’s home and workplace have been searched.
The internal debate at the Justice Department and F.B.I. over wiretap surveillance of terrorist groups ignited in March, prompted by questions raised by Royce C. Lamberth, the chief judge of the Foreign Intelligence Surveillance Court, a little-known panel that decides whether to approve Justice Department applications to permit wiretaps and clandestine searches in espionage and international terror cases.
In a letter to Attorney General Ashcroft, Judge Lamberth raised questions about a wiretap request related to a Hamas member, officials said. Under the Foreign Intelligence Surveillance Act, the F.B.I. must make applications, through the Justice Department, to the surveillance court to authorize wiretaps and clandestine searches of the homes and offices of suspected terrorists and spies.
The foreign surveillance act, passed in 1978 in the wake of Watergate and other revelations of abuses by the F.B.I. and C.I.A., created a legal framework to allow the government to eavesdrop on people considered dangerous to American national security, even if prosecutors had not yet developed a criminal case against them.
The legal standards that the F.B.I. must meet to obtain court authorization under the act are lower than the probable cause required under most criminal cases. But that flexibility comes with a cost: information gathered under the act can be used only in criminal cases under highly limited conditions.
Civil liberties advocates have frequently expressed concerns about whether the act allows the government to blur the lines between intelligence gathering and criminal prosecutions.
Judge Lamberth’s concerns about F.B.I. applications to the court are apparently related to whether the bureau was seeking wiretaps under the act on individuals without informing the court of a subject’s status pending criminal investigations.
The Bush administration team at the Justice Department reacted to Judge Lamberth’s complaints by opening an inquiry into Michael Resnick, an F.B.I. official who coordinates the act’s applications.
Mr. Ashcroft and Robert S. Mueller III, now director of the F.B.I., who at the time was temporarily serving as deputy attorney general, ordered a review of foreign surveillance authorizations. Louis J. Freeh, who was then the F.B.I. director, and Lawrence Parkinson, the bureau’s general counsel, ordered a review of several applications in terrorism cases dating back several years.
Disclosure of the internal investigation of the foreign intelligence process comes just as Mr. Ashcroft is seeking Congressional support for an emergency package of anti-terrorism legislation, including an expansion of the Justice Department’s ability to use wiretaps in cases of suspected terrorism or espionage.
Under his proposal, law enforcement agents would have broad authority to conduct roving electronic surveillance of suspected terrorists as they move from phone to phone or from computer terminal to computer terminal.
Some officials argue that the current system imposes burdens on the F.B.I. and Justice Department as they seek to obtain wiretaps of suspected terrorists. Under the foreign intelligence act, electronic surveillance authorization must be renewed by the F.I.S.A. court every 90 days, and authorization for physical search warrants must be renewed by the court every 45 days.
Applications surged after Tuesday’s attacks, officials said.
URL: http://www.nytimes.com
GRAPHIC: Photos (pg. B4) Chart: “The Suspected Hijackers”UNITED FLIGHT 93 FROM NEWARKAhmed AlhaznawiAhmed AlnamiSaeed AlghamdiZiad Jarrahi UNITED FLIGHT 175 FROM BOSTONAhmed AlghamdiMohald AlshehriHamza AlghamdiMarwan al-ShehhiFayez Ahmed AMERICAN FLIGHT 11 FROM BOSTONMohamed AttaSatam al-SuqamiWail AlshahriWaleed M. AlshehriAbdulaziz Alomari AMERICAN FLIGHT 77 FROM WASHINGTON DULLESKhalid al-MidharMajed MoqedNawaq AlhamziSalem AlhamziHani Hanjour(pg. B4)
SBD
Merry Christmas everyone!!
SBD
[…] Sorry to say this, but this is not the first time these FISA judges broke their oaths. On December 22 the Washington Post named names when the FISA Judges put partisanship above protecting Americans: “The questions are obvious,” said U.S. District Judge Dee Benson of Utah. “What have you been doing, and how might it affect the reliability and credibility of the information we’re getting in our court?” … Other judges contacted yesterday said they do not plan to resign but are seeking more information about the president’s initiative. … The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. […]