Updates and corrections at the end

Given the breaking news in Russia I am going to make this short and to the point. Previously I pointed out how FISA was not anywhere near as nimble as the anti-Bush crowd pretended, as they were hysterically calling for impeachment. Note: It would be better for the democrats if their more emotional element would try to calm down and think things through before they go running off half cocked.

Turns out that not only is the FISA process slow and cumbersome, it seems the FISA court was trying to take over the priorities of our surveillance efforts, exceeding their role as the judicial arm of government.

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court’s approval.
A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court’s repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

That last sentence would be more accurate if it also acknowledged the communications were associated with known Al Qaeda and terrorists outside our country. It would also be more accurate to point out that FISA wanted to retain ridiculously high standards of probable cause, reflecting a pre 9-11 mindset as opposed to recognizing the fact we have been at war with radical Islam since the mid 1990’s – when they declared war on us.

To win a court-approved wiretap, the government must show “probable cause” that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that “may” involve a violation of criminal law.

That is exactly the kind of thinking that allowed 9-11 to happen. And what the left will tell you is this has nothing to do with terrorists, just their childish fears that somehow they will be monitored for being against the government. Not to worry, we have elections to deal with people who are in terminal denial.

This next statement is all we need to know to determine Bush acted correctly and in the interest of the people of America

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

In other words, my family was protected because Bush understood the priority is protecting us from attack, not some idiotic, bureaucratic theory about minimal proof of intent. Being a member of Al Qaeda is minimal intent when they have declared war on us!

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court’s operation. In 20 of the first 21 annual reports on the court’s activities up to 1999, the Justice Department told Congress that “no orders were entered (by the FISA court) which modified or denied the requested authority” submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered “substantive modifications” took place in 2003 and 2004 — the most recent years for which public records are available.

Any bets on which justice was the creating the most coverage for Al Qaeda terrorists oversees? One should note, all these people are BDS suffers, so they are making these points as if they undermine Bush’s efforts.

UPDATE:

NewsMax has quite a few stories on the subject of surveillance. First is one on Colin Powell’s comments. Besides the debate over whether to get warrants (I think we all agree – even Bush – it is preferrable as long as the justices are not undermining our defenses, which I gather Powell was not aware was happening) Powell sums it up well:

Powell said Congress will need to judge whether Bush is correct in his assertion that he could approve eavesdropping without first obtaining court orders.

“And that’s going to be a great debate,” Powell said.

Powell, who also is a former chairman of the military Joint Chiefs of Staff, had no reservations when asked whether eavesdropping should continue.

“Of course it should continue,” he said. “And nobody is suggesting that the president shouldn’t do this.”

Damn the liberal judges! Full speed ahead.

The next is on comments by former Clinton official John Schmidt rebuking democrat inaccuracies:

Claims by a top Senate Democrat that the Clinton administration’s warrantless surveillance of suspected spies and terrorists was different from what the Bush administration has employed are being contradicted by a former Justice Department official who served under President Bill Clinton.

John Schmidt, who served as associate attorney general between 1994 and 1997, argues that both Congress and the Supreme Court have recognized presidents’ “inherent authority” to bypass warrants in ordering the eavesdropping of U.S. citizens suspected of conspiring with foreign governments or terrorists to injure or kill Americans.

You would think.

UPDATE II:

Bill Kristol’s Weekly Standard article has an very clear and damning statement regarding the FISA court failures and the NSA program successes:

On Monday, December 19, General Michael Hayden, former director of the National Security Agency and now deputy director of national intelligence, briefed journalists. The back–and–forth included this exchange:

Reporter: Have you identified armed enemy combatants, through this program, in the United States?

Gen. Hayden: This program has been successful in detecting and preventing attacks inside the United States.

Reporter: General Hayden, I know you’re not going to talk about specifics about that, and you say it’s been successful. But would it have been as successful-can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court?

Gen. Hayden: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.

So, how many innocent men, women and children would be dead today if we had relied solely on the ever breaking FISA, which has no jurisdiction regarding enemy communication in the first place? Michael Barone’s article today [hat tip Real Clear Politics on both these references] has a very powerful logical premise as well, which means it will fly right over a serious liberals head which is filled with Bush Derangement Syndrome fantasies

Let’s put the issue very simply. The president has the power as commander in chief under the Constitution to intercept and monitor the communications of America’s enemies. Indeed, it would be a very weird interpretation of the Constitution to say that the commander in chief could order U.S. forces to kill America’s enemies but not to wiretap — or, more likely these days, electronically intercept — their communications.

“Very weird” is pretty much sums up the liberal media and partisans these days.

UPDATE III:

Would anyone be surprised that Judge James Robertson who resigned his post from the FISA court from some unknown reason, has a linkage to 9-11 Commissioner Jamie Gorelick and 9-11 staffer Daniel Marcus (here, then here)?

Well they all do have a connection. They all worked for the same DC, powerhouse law firm of Wilmer, Cutler & Pickering (now with Hale and Dorr. That would be Lloyd Cutler, Clinton counsel. Their stall of lawyers is like a Who’s Who of DC power players. Are we surprised this fine group keeps being mentioned as participants in erecting the barriers to our self defense pre and post 9-11 (Able Danger comes to mind with Gorelick and Marcus)?

They have their fingers all over defense and national security issues. More on this later, if warranted.

UPDATE IV:

make sure to check out the comments from SBD where he shows 2 1/2 years going by before FISA moved its tail on requests from the FBI:

These are newly released email exchanges from the FBI regarding FISA. I was just trying to illustrate the obstruction being faced by the FBI. The first email, dated October 16, 2003 points out that after 2 years, they might finally get to use the tools authorized by Congress through FISA. The reply says, don’t count on it since they said they will get to the “business records” when they have the time.

The second email, dated May 21, 2004 with the subject MIRACLE, says that they finally got the business records they requested which makes it the first time they received any information in over 2 1/2 years. It also maked it 7 months since their original request.

I am sure, by pre 9-11 standards, the FISA process was corrected as much as possible. And I am also sure that the people who apply bureaucracies to emergencies (as is the way in DC) are never going to be able to respond to threats by terrorists in a manner that will protect us.

Of the judges at Wilmer, Cutler, Pickering, Hale and Dorr (WCPHD from now on) the ones to watch are the ones who also have connections to Able Danger and the purging of Al Qaeda data prior to 9-11. There seems to be a mindset here that monitoring terrorists takes a back seat to civil rights, and sometimes even political fallout, for many in power on the left.

These are the people who served in the DoD General Counsel’s Office during the purge of Able Danger:

John P Janecek
Stephen Preston
David W Ogden
A Stephen Hut

A quick search of these names gives me the impression Janecek and Preston focused in acquisition and contract concerns and would not necessarily be leaders on civil rights vs intelligence, or delving into concerns about data mining. Ogden seems to be everywhere in the Clinton administration, and Hut seems to be estremely liberal. In fact, he and Judge Robertson serve on the 2005-2006 Committee of “Court Excellence”

Correction: Strike Stephen Hut – he was not at DoD during the Able Danger period.

He served as Acting Special Assistant to the General Counsel of the Department of Defense from May to August 1977.

End of Correction

We shall see if there is a cabal of liberal lawyers and judges working with rogue intelligence agents to devastate our war on terror and defense against attack.