Dec 29 2005

FISA Does Not Cover NSA

Published by at 2:58 pm under All General Discussions,FISA-NSA

As I suspected, it is not clear FISA has any authority over the NSA’s role in surveillance overseas. The rub comes when information from overseas or in connection with overseas agents touches people in the US. That is when the FBI must come into play, and apparently the process of that hand over is through the FISA Court (FISC). Here is a Senate Judiciary Committee Report on the FISA process from February 2003. It establishes the role of FISA with the FBI, and problems with FISA discovered after 9-11.

I am not going to go through all of this, you all can read. But it is clear too many in the FISA Court and the Senate loved the Gorelick Wall, and probably feel is needs to come back. Now that scares me.

One particular focus of our oversight efforts has been the Foreign Intelligence Surveillance Act (FISA). This report is focused on our FISA oversight for three reasons. First, the FISA is the law governing the exercise of the DOJ’s and FBI’s surveillance powers inside the United States to collect foreign intelligence information in the fight against terrorism and, as such, is vitally important to our national security. Second, the concerns revealed by our FISA oversight highlight the more systemic problems facing the FBI and the importance of close congressional oversight and scrutiny in helping to provide the resources and attention to correct such problems before they worsen. Third, members of this Committee led the effort to amend key provisions of the FISA in the USA PATRIOT Act, and the sunset or termination of those amendments in four years makes it imperative that the Committee carefully monitor how the FISA changes are being implemented.

Again, the rub is how to pass information from NSA (or something akin to Able Danger) to the FBI when these intelligence gathering efforts detect terrorists or terrorist sympathizers inside the US (like Able Danger did in the summer of 2000).

I sometimes wonder why the Senate is filled with dunderheads. FISA is meant to begin surveillance of a possible terrorist here in the US. It was designed to address ‘foreign powers’ or enemy states. Obviously in the new world order of Al Qaeda, terrorists are not specific to a ‘foreign power’. The FISA act was amended, but the problem of a ‘lone wolf’ still remained. The reason being is it can clear someone wants to kill Americans, but extremely unclear what terrorist organization(s) they may be associated with. Just think of Zarqawi in Iraq, who worked for an Al Qaeda associate group and was not considered Al Qaeda until he declared his allegiance openly.

This is an obvious area where a known terrorist could skirt the FISA process simply by concealing or confusing his affiliations. And it was much debated in the Patriot Act clean up of FISA. Well check out this question from our brain dead senators:

Within weeks of passage of the USA PATRIOT Act, the Senate Judiciary Committee held hearings with senior DOJ officials on implementation of the new law and other steps that were being taken by the Administration to combat terrorism. The Committee heard testimony on November 28, 2001, from Assistant Attorney General Michael Chertoff and, on December 6, 2001, from Attorney General Ashcroft. In response to written questions submitted in connection with the latter hearing, DOJ confirmed that shortly after the USA PATRIOT Act had been signed by the President on October 26, 2001, DOJ began to press the Congress for additional changes to relax FISA requirements, including expansion of the definition of “foreign power” to include individual, non-U.S. persons engaged in international terrorism. DOJ explained that this proposal was to address the threat posed by a single foreign terrorist without an obvious tie to another person, group, or state overseas. Yet, when asked to “provide this Committee with information about specific cases that support your claim to need such broad new powers,” DOJ was silent in its response and named no specific cases showing such a need, nor did it say that it could provide such specificity even in a classified setting.4 In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.

This is an astonishing lack of imagination and thinking by the Senate Committee. If they cannot figure out on their own how a situation can arise where a suspected terrorist is known to be here in the US, but not his affiliation, then maybe they should step down and let someone with a few brain cells to rub together take their place.

And don’t let Senator Specter or others pretend they did not know the FISA court was bucking the 9-11 changes and removal of the Gorelick Wall. They knew all too well there was a revolt going on with the FISC

On September 10, 2002, the Committee held an oversight hearing specifically focusing on issues related to the FISA. Leading experts from the DOJ, from academia, and from the civil liberties and national security legal communities participated in a rare public debate on the FISA. That hearing brought before the public an important discussion about the reaches of domestic surveillance using FISA and the meaning of the USA PATRIOT Act. In addition, through the efforts of the Judiciary Committee, the public learned that this same debate was already raging in private. The FISA Court had rejected the DOJ’s proposed procedure for implementing the USA PATRIOT Act, and the FISA Court of Review was hearing its first appeal in its 20-year-plus existence to address important issues regarding these USA PATRIOT Act amendments to the FISA.

And what did the Senate have to say about this open defiance of their legislative powers? They crowed about how they made it public

Thus, only through the bipartisan oversight work of the Judiciary Committee was the public first informed of the landmark legal opinion interpreting the FISA and the USA PATRIOT Act amendments overruling the FISC’s position, accepting some of the DOJ’s legal arguments, but rejecting others.

Does anyone else get the feeling the Senate did not mind the FISC defying the Patriot Act?

What is truly mind boggling is the Senate blames the FBI and DOJ for problems stemming from FISA! Check out this list of issues laid at the feet of the FBI/DOJ, but which are actually things established by the FISA Court Judges.

The FBI and Justice Department were setting too high a standard to establish that there is “probable cause” that a person may be an “agent of a foreign power” and, therefore, may be subject to surveillance pursuant to FISA;

Any standard for ‘probable cause’ is set by the judges – not the petitioners. And if you read opinions by Judge Royce Lamberth, who presided over the FISC at the time, it is clear he was setting the standards.

We [FISA Judges] 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.

Reading Lamberth’s statements it is clear to me he set the bar very, very high for probable cause – so as to protect those civil liberties.

And Lamberth is known to have had a major hissy-fit over marginal information, causing the FBI to pull back and allow authorizations to expire and halt monitoring of Al Qaeda people in the US.

Prior problems between the FBI and the FISA Court that resulted in the Court barring one FBI agent from appearing before it for allegedly filing inaccurate affidavits may have “chilled” the FBI and DOJ from aggressively seeking FISA warrants (although there is some contradictory information on this matter, we will seek to do additional oversight on this question);

It turns out the problem was one or two errors, repeated many times since the applications are resubmitted every 45 days to keep them alive. Lamberth was bombastic, and his temper tantrum put us at risk.

The FBI’s difficulties in properly analyzing and disseminating information in its possession caused it not to seek FISA warrants that it should have sought.

Translation: Since the FISA rules are complex, restrictive and probably incoherent (as are most federal guidelines) the FBI decided it did not have the man power or money to comply until things became absolutely necessary. When a process is so bad, those who need do what they can to avoid it, it is not the fault of those avoiding it that the process is so bad.

And if anyone thinks the turf wars are over, and the post 9-11 objectives are clear (e.g., stop the terrorists), there is this hint of friction between law enforcement and the Senate

From the outset, we note that our discussion will not address any of the specific facts of the case against Zacharias Moussaoui that we have reviewed in our closed inquiries. That case is still pending trial, and, no matter how it is resolved, this Committee is not the appropriate forum for adjudicating the allegations in that case. Any of the facts recited in this report that bear on the substance of the Moussaoui case are already in the public record.

You have to wonder what possessed them to put that little disclaimer in their report.

But back to the screw ups. People inside the FBI are not clean on this. Here is the classic ‘don’t bother me kid’ response I see day in and day out in government. For all the people who work hard and well in the government, there are small group who just don’t want to be bothered. Read this and you will see someone who was told something, and just didn’t want to be bothered.

First, most surprisingly, the SSA never presented the information submitted by Minneapolis and from other sources in its written, original format to any of the FBI’s attorneys in the National Security Law Unit (NSLU). The Minneapolis agents had submitted their information in the 26-page EC and a subsequent letterhead memorandum (LHM), but neither was shown to the attorneys. Instead, the SSA relied on short, verbal briefings to the attorneys, who opined that based on the information provided verbally by the SSA they could not establish that there was probable cause that Moussaoui was an agent of a foreign power. Each of the attorneys in the NSLU stated they did not receive documents on the Moussaoui FISA, but instead only received a short, verbal briefing from the SSA. As SA Rowley noted, however, “verbal presentations are far more susceptible to mis-characterization and error.”

Bull Hockey. There are many times that the situation is so obvious writing it down seems silly. But the dead-wood in government will find a way to avoid work no matter what. And these people should not to be tolerated in this way by giving them a pass.

All the person had to do was ask ‘is there documentation on this from the field?”. That’s it – one little old question. The fact the Senate took the dead wood’s side in this is disgraceful. It is the classic case of dereliction of duty covered by more dereliction of duty. This is criminal.

As folks who read my site know, I read a little, write a little. So the post follows the outline of any document I am reviewing. So we now jump back to Lamberth’s temper tantrum over the Gorelick Wall, which caused the FBI to avoid FISA and allow FISA monitors to lapse.

One FBI supervisory special agent has been barred from appearing before the Court. In March of 2001, the government informed the Court of an error contained in a series of FISA applications. This error arose in the description of a “wall” procedure. The Presiding Judge of the Court at the time, Royce Lamberth, wrote to the Attorney General expressing concern over this error and barred one specifically-named FBI agent from appearing before the Court as a FISA affiant….FBI Director Freeh personally met twice with then-Presiding Judge Lamberth to discuss the accuracy problems and necessary solutions.

An error in the description of a Wall procedure? Is that what set Lamberth off and allowed 20 highjackers to kill 3000 people? Why didn’t Lamberth just tell the FBI what he wanted, or correct the record himself? Why the hissy-fit?

The Senate agrees most of the errors where editorial in nature, then points to these errors as being ‘much broader’.

Such mistakes included videotaping a meeting when videotaping was not allowed under the relevant FISA Court order, continuing to intercept a person’s email after there was no authorization to do so, and continuing a wiretap on a cell phone even after the phone number had changed to a new subscriber who spoke a different language from the target.

They were also marginal and mistakes in execution, not intent. Because of these irrelevant missteps the FISA Court blew it’s stack and caused the FBI to avoid it, possibly leading to 9-11. I see this more a problem with FISC arrogance and unprofessional behavior.

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