Many Updates at the end

It is becoming more and more evident some FISA judges (James Robertson?)were resisting common sense changes to the intelligence and law enforcement process that would enhance our chances of thwarting future 9-11 attacks. Our reader SBD commented on our previous post this morning and provides clear evidence the FISA wars started early on, less than a year after 9-11, and as we all know have been escalating ever since.

On May 17, 2002, the FISA court was itself taken to court by the Bush administration for trying to retain the Gorelick Wall barring the sharing of intelligence data with law enforcement efforts.

The Department of Justice has moved this Court [FISA] to vacate the minimization and “wall” procedures in all cases now or ever before the Court, including this Court’s adoption of the Attorney General’s July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion. The Court has considered the Government’s motion, the revised intelligence sharing procedures, and the supporting memorandum of law as required by the Foreign Intelligence Surveillance Act (hereafter the FISA or the Act) at 50 U.S.C. §1805(a)(4) and §1824(a)(4) (hereafter omitting citations to 50 U.S.C.) to determine whether the proposed minimization procedures submitted with the Government’s motion comport with the definition of minimization procodures under §1801 (h) and §1921(4) of the Act. The Government’s motion will be GRANTED, EXCEPT THAT THE PROCEDURES MUST BE MODIFIED IN PART.

It is a fascinating read on a FISA court trying to usurp powers given to the administration. The end result was a higher court’s decision to overrule the FISA Court:

Accordingly, we reverse the FISA court’s orders in this case to the extent they imposed conditions on the grant of the government’s applications, vacate the FISA court’s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.

More on this as I have time to analyze the information in these two documents. But it is quite clear the FISA court decided to retain the Gorelick wall by trying to impose the same restrictions through a power grab. I should say it is clear some FISA judge(s) tried to retain the Gorelick wall.

UPDATE:

The presiding judge for the FISA power grab was Royce C. Lamberth, with concurrence from the remaining seven judges.

Honorable William H. Stafford, Jr.
Judge, United States Foreign
Intelligence Surveillance Court

Honorable Stanley S. Brotman
Judge, United States Foreign
Intelligence Surveillance Court

Honorable Harold A. Baker
Judge, United States Foreign
Intelligence Surveillance Court

Honorable Michael J. Davis
Judge, United States Foreign
Intelligence Surveillance Court

Honorable Claude M. Hilton
Judge, United States foreign
Intelligence Surveillance Court

Honorable Nathaniel M. Gorton
Judge, United States Foreign
Intelligence Surveillance Court

Lamberth seems to have been like Judge James Robertson, a bit of a stick in the mud when it came to protecting America from another 9-11.

UPDATE II:

Here is a problem with the definition of scope in the original FISA findings on minimal standards that can make FISA a problem, not a solution:

applications for electronic surveillance and physical search must contain a certification from a senior Executive Branch official (normally the FBI Director in U.S. person cases) that “the information sought is foreign intelligence infomation,” that “a significant purpose of the surveillance is to obtain foreign intelligence information,” that “such [foreign intelligence] information cannot reasonably be obtained by normal investigative techniques,” and “designates the type of foreign intelligence information being sought.” (§1804(a)(7)) Comparable requirements apply in applications for physical searches. (§1923(a)(7)).

Emphasis mine. Note that this statement requires the person to say the information cannot be found using normal law enforcement processes. It does not include conditions for timeliness or immediacy. It assumes the information is solely needed for court cases, not prevention of attack. It is this kind of fuzzy wording that allows people to prioritize civil liberties over physical protection from attack.

UPDATE III:

No wonder this court has at times, run amok. It has decided is is above the law and only must answer to itself! Again, from the original FISA ruling document:

However, this Court, or on appeal the Foreign Intelligence Surveillance Court of Review having jurisdiction “to review the denial of any application,” is the arbiter of the FISA’s terms and requirements.

We call that a self licking ice cream cone. It is also a patently unconstitutional theory that puts the court in charge of itself. They are a little too full of themselves in my opinion:

The members bring their specialized knowledge to the issue at hand, mindful of the FISA’s preeminent role in preserving our national security, not only in the present national emergency, but for the long term as a constitutional democracy under the rule of law.

Everyone else plays a secondary role it seems.

UPDATE IV:

There is not doubt the FISA court was doing all it could to retain the Gorelick Wall. From the FISA ruling addressing changes to the Gorelick Wall

The Attorney General’s new minimization procedures are designed to regulate acquisition, retention, and dissemination of information involving the FISA (i.e., disseminating information, consulting, and providing advice) between FBI counterintelligence and counterterrorism officials on the one hand, and FBI criminal investigators, trial attomeys in the Justice Department’s Criminal Division, and U.S. Attorney’s Offices on the other hand. These new minimization procedures supersede similar procedures issued by the Attorney General in July 1995 (hereafter the 1995 procedures) which were augmented in January 2000 and then in August 2001 by the current Deputy Attorney General. The Court has relied on the 1995 procedures, which have been followed by the FBI and the Justice Department in all electronic surveillance and physical searches of U.S. persons since their promulgation in July 1995. In November 2001, the court formally adopted the 1995 procedures, as augmented, as minimization procedures defined in §1801(h) and §1821(4), and has incorporated them in all applicable orders and warrants granted since then.

Right after 9-11, the FISA court baselined the Gorelick Wall with some minor mods proposed prior to 9-11. Talk about your Sept 1oth mindsets!

UPDATE V:

To be fair, there seems plenty of leeway for the FBI and others to identify pertinant information for both intelligence and criminal proceedings:

once the information is understandable, a reviewing official, usually an FBI case agent, makes an informed judgment as to whether the information seized is or might be foreign intelligence information related to clandestine intelligence activities or international terronism;

if the information is determined to be, or might be, foreign intelligence, it is logged into the FBI’s records and filed in a variety of storage systems from which it can be be retrieved for analysis, for counterintelligence investigations or operations, or for use at criminal trial;

if found not to be foreign intelligence information, it must be minimized, which can be done in a variety of ways depending upon the format of the information: if recorded the information would not be indexed, and thus become non-retrievable, if in hard copy from facsimile intercept or computer print-out it should be discarded, if an re-recordable media it could be erased, or if too bulky or too sensitive, it might be destroyed.

These same principles of minimization are applied to all information collected, whether by electronic surveillance or physical search.

UPDATE VI:

It is clear Bush was trying to respond to the threat, because his administration put through modifications to the FISA process in August 2001. So the Bush administration was trying hard to react to the threat. But FISA considered the 1995, January 2000 and August 2001 procedures to be a whole, with some interesting loop holes:

The Criminal Division may then consult with the FBI and give guidance to the FBI aimed at preserving the option of criminal prosecution, but may not direct or control the FISA investigation toward law enforcement objectives;

Why this restriction is in there seems ridiculous. It means information gleaned from a criminal investigation cannot be fed back into the intelligence operation. It means any leads or connections found while investigating a criminal act, cannot lead to a terrorist plot.

UPDATE VII:

Money Quote:

In significant cases, involving major complex investigations such as the bombings of the U.S. Embassies in Africa, and the millennium investigations, whem criminal investigations of FISA targets were being conducted concurrently, and prosecution was likely, this Court became the “wall” so that FISA information could not be disseminated to criminal prosecutors without the Court’s approval. In some cases where this Court was the “wall,” the procedures seemed to have functioned as provided in the Court’s orders; however, in an alarming number of instances, there have been troubling results.

There you have it folks. In 2002 the FISA court admitted it was the wall and its decisions had terrible results.

UPDATE VIII:

Anybody following Able Danger will recognize these dates and time periods:

Beginning in March 2000, the government notified the Court that them had been disseminations of FISA information to criminal squads in the FBI’s New York field office, and to the U.S. Attorney’s Office for the Southern District of Now York, without the required authorization of the Court as the”wall” in four or five FISA cases. Subsequently, the government filed a notice with the Court about its unauthorized disseminations.

In September 2000, the government came forward to confess error in some 75 FISA applications related to major terrorist attacks directed agaiinst the United States. The errors related to misstatements and omissions of material facts. including:

a. an erroneous statement in the FBI Director’s FISA certification that the target of the FISA was not under criminal investigation;
b. erroneous statements in the FISA affidavits of FBI agents concealing the separation of the overlapping intelligence and criminal investigations, and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys;

c. omissions of material facts from FBI FISA affidavits relating to a prior relationship between the FBI and a FISA target, and the interview of a FISA target by an assistant U.S. attorney.

In November of 2000, the Court held a special meeting to consider the troubling number of inaccurate FBI affidavits in so many FISA applications. After receiving a more detailed explanation from the Department of Justice about what went wrong, but not why, the Court decided not to accept inaccurate affidavits from FBI agents whether or not intentionally false.

We discussed the FISA snit that caused the FBI to walk away from FISA here.

Interestingly enough, the dates listed here coincide with the Able Danger report with Atta, Mihdar, Hazmi and Shehhi was being sent around, when the Able Danger data purge was going (wiping out all this information) and SOCOM was being blocked from talking to the FBI. Coincidence?

UPDATE IX:

Yep, in their own words, FISA wanted to retain the wall that led to 9-11:

However, the proposed 2002 minimization procedures eliminate the bright line in the 1995 procedures prohibiting direction and control by prosecutors on which the Court has relied to moderate the broad acquisition retention, and dissemination of FISA information in overlapping intelligence and criminal investigations.
…
As we conclude the first part of our statutory task, we have determined that the extensive acquisition of information concerning U.S. persons through secretive surveillances and searches authorized under FISA, coupled with broad powers of retention and information sharing with criminal prosecutors, weigh heavily on one side of the scale which we must balance to ensure that the proposed minimization procedures are consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.

In other words “we are the wall!”

UPDATE X:

(And I stop here). Going back to the FISA Review ruling on all this silliness to retain the Gorelick Wall:

Not surprisingly this case raises important questions of statutory interpretation, and constitutionality. After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion.

Recall, this was 8 months after 9-11, and FISA has been bucking the post 9-11 reality more and more since this time.

UPDATE XI:

What this post covers in detail, this well timed Weekly Standard article summarizes nicely.

UPDATE XII:

Hopefully soon the debate will focus on the fact that the FISA court was bent on retaining the Gorelick Wall, despite all we learned from 9-11. In fact, it is clear the FISA court was a core part of the pre 9-11 problem. More at QandO