SBD, a reader here and on other conservative sights, keeps posting comments that appear a lot like bread crumbs to follow. Fortunately I find his crumbs hard to resist. The latest was on this story by James Risen just after 9-11 regarding wire taps, FISA and terrorists.

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.
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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.
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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.

That was September 18, 2001. Fast forward to August 23rd, 2002 to find the resolution of this inquiry:

The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.

A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance Act (FISA) alleges that Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

Authorities also improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions, the judges said.

The department discovered the misrepresentations and reported them to the FISA court beginning in 2000.
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The dispute between the Justice Department and the FISA court, which has raged behind closed doors until yesterday, strikes at the heart of Ashcroft’s attempts since Sept. 11 to allow investigators in terrorism and espionage to share more information with criminal investigators.

Generally, the Justice Department must seek the FISA court’s permission to give prosecutors of criminal cases any information gathered by the FBI in an intelligence investigation. Ashcroft had proposed that criminal-case prosecutors be given routine access to such intelligence information, and that they be allowed to direct intelligence investigations as well as criminal investigations.

This is the now infamous Gorelick Wall which would not come out in public until the 9-11 Commission, which came later.

The ruling, signed by the court’s previous chief, U.S. District Judge Royce C. Lamberth, was released by the new presiding judge, U.S. District Judge Colleen Kollar-Kotelly.

FBI and Justice Department officials have said that the fear of being rejected by the FISA court, complicated by disputes such as those revealed yesterday, has at times caused both FBI and Justice officials to take a cautious approach to intelligence warrants.
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The opinion itself — and the court’s unprecedented decision to release it — suggest that relations between the court and officials at the Justice Department and the FBI have frayed badly.
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FISA applications are voluminous documents, containing boilerplate language as well as details specific to each circumstance.

Hmm. Seems the FISA court is not the streamlined, team player democrats and the media have led us to believe. In looking back, it appears the FISA court helped misdirect efforts at a critical time running up to 9-11. Their egotistical anger at inaccuracies in filings (repeated since the filings are resubmitted every 45 days) resulted in a petty investigation that had the effect of inhibiting the use of the critical FISA process:

In addition, recent interviews of intelligence officials by The New York Times suggest that the bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information. The F.B.I., the officials said, had become wary after a well-regarded supervisor was disciplined because the court complained that he had submitted improper information on applications.
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The bureau’s reluctance to press new applications for national security search warrants stemmed, some officials believe, from an incident late in the Clinton administration.

In the fall of 2000, the seven judges on the secret Foreign Intelligence Surveillance Court in Washington summoned Attorney General Janet Reno to their secure courtroom. The judges, in a letter signed by Chief Judge Royce C. Lamberth, had complained to her of a serious breach. Misleading affidavits had been submitted to the court, which approves warrants to eavesdrop on people suspected of being foreign agents or international terrorists. At the meeting, Ms. Reno agreed that the problem was serious, the officials said.

All of the flawed affidavits had been submitted by Michael Resnick, the F.B.I. supervisor in charge of coordinating the surveillance operations related to Hamas, the militant Palestinian group. The judges said they would no longer accept applications from Mr. Resnick.

In response, the F.B.I. director at the time, Louis J. Freeh, ordered a broader review of the eavesdropping applications — including those related to Al Qaeda. That review, the officials said, turned up disturbing signs that Al Qaeda applications were also flawed.

For Mr. Resnick, who had been a rising star in the bureau, the complaint from the judges and especially their refusal to have him appear before them again was a blow to his career that angered some of his colleagues. Ms. Reno turned over the complaint to the department’s Office of Professional Responsibility, which is still investigating Mr. Resnick.

Intelligence officials said the event resulted in making the bureau far less aggressive in seeking information on terrorists. Other officials said the Resnick case prompted bureau officials to adopt a play-it-safe approach that meant submitting fewer applications and declining to submit any that could be questioned.

Hmm again. Reno incompetence results in rebuke, which results in an over reaction, which results in a Federal system working well below par. Seems to me FISA has was a integral stumbling block to intelligence gather pre and post 9-11.

Possibly more later.

UPDATE:

OK a bit more now. Here is the process in the words of Judge Lamberth himself:

Applications for electronic surveillances and physical searches are presented to individual judges of the court who conduct virtually all the hearings at a special secured courtroom in Washington. Currently, one judge comes to Washington each week for two days for a regular sitting of the court. Emergency motions have, or may be, presented to the presiding judge or another available judge between regular sittings. Every application is a formal written application, sometimes 40-50 pages in length, with great detail showing the evidence and what reason there may be to suspect the person. Each application is supported by an affidavit of the investigative agent who is responsible for the surveillance, and who personally appears before the judge to respond to any questions, along with the Justice Department lawyer from the Attorney General’s Office of Intelligence Policy and Review. Each application also is accompanied by a certificate signed by the head of the investigative agency involved who certifies the need for the surveillance, and by approval by the Attorney General or Deputy Attorney General that all statutory requirements for the surveillance have been met. They can’t present it to the court until it has been signed by the Attorney General or Deputy Attorney General.

For the government, this is considered stream lined. Look at all the people who need to get together for each request. One other item to note is the emphasis Lamberth places in civil rights:

All of the proceedings are ex parte so we do understand that the judges of the court have a special duty to protect the rights of absent parties, to ensure that there is a proper basis for the surveillance sought. The judge carefully explores all the constitutional and statutory questions presented by what is being sought—always mindful of this special duty to absent parties. The court views the personal accountability of the Attorney General and the head of the investigative agency for each request made to the court as a way to ensure that everything we see is well scrubbed before it is presented to the court.

I believe that the variety of judges who have now served on this court—Democrats and Republicans, conservatives and liberals, from east and west and north and south—has been a real strength of this court in demonstrating that when we approve a surveillance request there really is a valid national security basis for this surveillance. And that it is not being done for some improper political motive. What we add to the process is some assurance to the public that there is a valid national security reason for the surveillance.

I agree it is important to balance the rights of the person(s) who can be caught up in surveillance. But if one end of the conversation is with a known terrorist, the civil liberties of the US contact take second place to safety of Americans. The surveillance itself will establish whether the US contact is innocent or part of a terrorist plot. I would say the FISA court is not all the NY Times led us to believe. Lamberth, a conservatice judge no doubt, has legal blindes on:

We worked to protect civil liberties while protecting the country itself. The judges asked themselves: Are we going to lose our liberties if we approve this kind of surveillance? We knew that the country has not always done things right.

That is not the right order in all cases. You could lose civil liberties on any surveillance. What is not in the equation is th risk of attack. Where do we weigh whether we will have thousands of dead Americans with their civil liberties still, uselessly now, intact?

UPDATE II:

Stick a fork in the media and the left – they are done.

Communications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearlv und unnzistakuhlj authorizes such activities directed against the communications of our enemy. Accordingly, the President’s “authority is at its maximum.”