Jan 02 2006
We Don’t Need Congressional Meddling
Seems some attention hungry Senators want to strut and pontificate in front of the country:
The chairman of the powerful Senate Judiciary Committee, Arlen Specter, a Pennsylvania Republican, has said he intends to hold hearings into whether the program is legal.
…
Sen. Richard Lugar, an Indiana Republican who chairs the Foreign Relations Committee, said Sunday that “this is an appropriate time” for congressional hearings.“Congress quite rightly is trying to take a look at, now that we’re past 9/11, we’re going to have to live with the war on terror for a long, long while,” he told CNN’s “Late Edition.”
…
Sen. Richard Durbin, an Illinois Democrat, welcomed the prospect of hearings.“This year, 2006, we are going to be focusing on the power of the president in time of war,” he told CNN. “The White House wants to expand that power in so many areas. Clearly, Congress is holding back.”
Folks, it is quite simple. We monitor our enemies overseas. This is legal. We monitored the Japanese and the Nazis and this is no different.
And for the modern era of terrorism, our enemies have contacts in the US. And they contact them. We will find this out in due course if we are doing our job of monitoring our enemies correctly.
The NSA-FISA issue may have one and only one legitimate question before this country. And it is not whether the NSA is legal. It is.
It is how do we share intelligence information unearthed about terrorists in the US with law enforcement so we can begin criminal action and take them off the street. Personally, if the information is a solid lead, then take it through FISA and begin investigations there. And at some point the process can move to regular warrants. FISA is no more tainted by good NSA intel than our courts are tainted by good FISA intel as the basis for those leads.
While the liberal media is fixated on partisan payback (‘move on’ is such an oxymoron), the thing serious Americans want to make sure is that we do something about our leads on terrorist actions here in the US.
Sen Specter is a legal theoretician, with purists views on what is legal (verses is what is ‘accurate’). To Specter information is no good unless it follows some man-made path of discovery. He confuses accuracy with process. In his fantasy world accurate information is of no value if discovered out of the ‘normal’ process (as opposed to illegaly or wrongly – for example torture). In his theoretical little world inaccurate information is allowable as long as it went through the proper process – it must then be dismissed in court.
To people living in the real world information is either accurate, inaccurate or indeterminate to the subject. How you obtain the information has little bearing on which of these three categories the information ultimately will fall into. With the obvious exception of coerced information. What we want to know is it accurate and will it shed light on what might be happening.
That is why a ideologue like Specter would consider releasing an admitted terrorist if the information gathered to demonstrate his plans were exposed as ‘tainted’ by some process that doesn’t involve a judge. To folks like Specter this would be ‘due process’, but no matter how inaccurate the result would be.
The guy is a dangerous stick in the mud. His faith in a court over a dedicated agency of the United States is quite quaint – and misguided. People run every institution, and in the end they are either people of moral quality or not. Judges are no better human beings than NSA analysts trying day in and day out to stop attacks on this country.
So don’t be confused with all the preaning in front of the cameras. We have to be able to use our intelligence leads to find and stop terrorists in the US. That is the bottom line. We have to be able to use leads discovered by the NSA which point to persons in the US to follow up with the persons in the US.
The acid test still stands. If the NSA had tripped over communications of 9-11 pilots Hazmi and Midhar, as they lived in San Diego, with Mohemad Atta while he was in Hamburg then that information, gleaned without a warrant, would have been critical in stopping 9-11.
Right now, the NSA is in a position to pull off this kind of disruption of a terrorist attack and find the terrorists in the US. The process has been damaged by the partisan leakers looking for political gain. But if we put back the wall that says intelligence (by definition information without a warrant) cannot be used to launch FISA warrants, and then later normal warrrants, we have the wrong people in Congress.
Don’t let the legal theorists play games with your lives. Or your families lives
I am watching a discussion on FOX about BLOGS.
They said that BLOGS are now hiring journalists, and they showed a blog.
The name on the BLOG was JOSH MICAH Marshall.
Isn’t that one of those VIPS?
I forgot to say the show was called FOX NEWS WATCH.
Here is Marshall’s site–Talking Points Memo
http://www.talkingpointsmemo.com/
See the top right banner–TPM is hiring a reporter to be a blogger.
In examining the adequacy of the FISA applications, we conduct the [*205] same review that the FISA court conducted (and that the district court may have conducted, which, as we noted earlier, is not indicated either way in the record). A court, in reviewing the application, is not to second-guess the executive branch official’s certifications. United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984). “Further, Congress intended that, when a person affected by a FISA surveillance challenges the FISA Court’s order, a reviewing court is to have no greater authority to second-guess the executive branch’s certifications than has the FISA Judge.” Duggan, 743 F.2d at 77. We turn then to the FISA court’s role in reviewing an application for surveillance. HN7The FISA court is authorized to enter an ex parte order approving a request for electronic surveillance if it finds that:
(1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information;
(2) the application has been made by a Federal officer and approved by the Attorney General;
(3) on the basis of the facts [**18] submitted by the applicant there is probable cause to believe that–
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and
HN8(5) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) of this title and any other information furnished under section 1804(d) of this title.
50 U.S.C. § 1805(a).
We haveconducted a careful in camera and ex parte reviewof the entire record in this matter, and we conclude that the FISA court properly granted the applications. All of the requisite certifications are in order. The Appellant’s remaining objections to the legality of the FISA surveillance (specifically, his claims of wrongdoing or illegal intent by the Attorney General) are wholly without basis in the record.
Because the FISA surveillance was not illegal, this Court need not consider the parties’ arguments as to whether the illegality of FISA surveillance may serve as a defense to contempt in a grand jury proceeding. The government urges this Court to hold that illegal FISA surveillance is never a defense to contempt in a grand jury proceeding. The Appellant counters that Gelbard v. United States, 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972), provides him a complete defense to contempt when his presence before the Special Grand Jury is procured through information gained in illegal FISA surveillance. See also September 9, 1987 Grand Jury, 856 F.2d at 689 (looking to Gelbard for guidance in determining the right of a grand jury witness to refuse to testify when the legality [**20] of related FISA wiretaps was in question). Because the surveillance was conducted lawfully here, there is no [*206] need to rule on the viability of a Gelbard defense in the FISA context. We reserve that issue for another day.
The Appellant also contended that FISA violates the Fourth and Fifth Amendments, and that the unconstitutionality of the surveillance provides him with a defense to contempt. We reserve for another day that question as well. courts to consider the issue before FISA was amended by the USA Patriot Act of 2001 n7 have found FISA constitutional. See United States v. Nicholson, 955 F. Supp. 588, 590 n.3 (E.D. Virginia 1997) (collecting cases upholding FISA against various constitutional challenges). The only court to consider the constitutionality of the post-Patriot Act version of FISA is the Foreign Intelligence Surveillance Court of Review in its only published decision. In re: Sealed Case No. 02-001, 310 F.3d 717 (FISA Ct. App. 2002). n8 That court found that HN9the Patriot Act’s amendment to FISA permitting the government to conduct surveillance of an agent of a foreign power if foreign intelligence is a “significant purpose” of the surveillance [**21] does not offend the Fourth Amendment. The Appellant’s argument that the Patriot Act rendered FISA unconstitutional and that FISA violates the Fourth Amendment is conclusory, undeveloped and without citation to authority. Indeed, it is confined to one page of a ninety-page brief in a section titled, “The FISA Statute is Unconstitutional on its Face and as Applied.”
HN10Assessing the constitutionality of a statute is the most delicate task of a federal court. A litigant cannot require constitutional adjudication by incanting magic spells or pointing a finger at a particular clause. We decline to consider constitutional arguments that are offered undigested.
n7 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.L. No. 107-56, 115 Stat 272 (Oct. 26, 2001).
n8 See 50 U.S.C. § 1803(b). er this section, the Chief Justice of the United States Supreme Court is authorized to publicly designate three judges to a court of review which has jurisdiction to review the denial of any application made under FISA.
Has this been brought to anyone’s attention in this debate? After reading the above, can anyone really think that a congressional investigation is required??
The statement above clearly states that the role of the FISA court is not to second guess the Executive Branch, but rather it is an ex-parte review of the application to make sure that all of the required prerequisites are contained in the Certificate. If there is for some reason an objection, then the FISA Review Court steps in to make the decision.
The Executive Branch is not asking the FISA Court for permission!!
The FISA Court is reviewing the Certification and if it has all of the required information in each section of the statute, it is obliged to accept it, or ask for a review. The asking for a review from the FISA Review Court does not stop the application, only a decision from the FISA Review Court can declare the Certificate unlawful and put an end to it.
In re Grand Jury Proceedings of the Special April 2002 Grand Jury
SBD
To expand on AJ’s comments about gathering intel on foreign enemies, does anyone actually think that the US would have stopped snooping on Nazi or Japanese spies once they entered this country if we had gathered information that they were being contacted from outside the US during WWII?
I didn’t think so either. The trail wouldn’t have stopped at our borders, but continued to the communicator at the end of the info trail. And with time being of the essence in many cases, taking the matter into court (no matter how expedited that may be) will not be fast enough.
Why does eveyone assume terrorists always come from some other place? Most terrorism is home-grown.
Some terrorists might be white Americans who are citizens with advanced degrees and very good jobs. Maybe they don’t have to sneak in. Maybe they aren’t Muslims. Maybe they live here. But they don’t share our democratic values.
Maybe these brainy guys were born here and want to have the right to use the classroom, phone and internet to recruit “Islamist” terrorists and other suiciders. And they want to keep it that way. And the ACLU will help them, of course.
And maybe they are organized under the cover of “rights” groups etc., so if they get in trouble for terrorism they can claim they are being framed for their “dissent.”
And on another, totally unrelated topic:
Here are the law professors hearing from Professor Ward Churchill
about how academic freedom is allegedly getting repressed
http://www.saltlaw.org/aals2006cover.htm
That’s right. Ward Churchill and his circus will supposedly be in D.C. Wednesday, January 4, 2006.
You know who Churchill is, right? The guy who celebrated 9-11 while he PRETENDED to be an Indian. The guy who thinks we need more 9-11s? The guy who tells his audiences that it might not be a bad thing if soldiers “fragged” (shot/tossed a grenade at) their officers. The guy who claims that the FBI abetted the murder of hundreds of American Indians during the 1970s? The Boulder guy whose Denver lawyer is ACLU member David Lane . The guy who writes about genocide. The guy who thinks that our population is unsustainable. The guy who once admitted to the Denver Post that he taught radicals how to make bombs. Well, I could go on and on…
Does anyone remember me saying that Professor Churchill was recently in town to attend a Cynthia McKinney conference about how “Bush knew” about 9-11. That would be the congresswoman’s Able Danger Conference.
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/131zgkea.asp
Crickets chirping…
Opps! Now it was not the Democrats who let that cat out of the bag, was it.
So now all the arrested people accused of terrorism are trying to get out of jail free by claiming that they were illegally identified by the NSA.
It just gets more and more intolerable…
It is truly unfortunate that our elected officials and media talking heads (regardless of network) can’t be bothered to do an hour of so of reading on blog’s such as this one. But since their egos and pride take precedence over our national security perhaps they’ll be mollified when one of our major cities, probably New York, is a nuclear wasteland. Keep up the great work AJ.
SBD–your post on the law is probably very good, but hard for me to understand.
Maybe you could break it down a bit.
I feel sure that the Bush people will be able to make a good case. I am not worried about that.
The left is trying to suggest that Bush is probably spying on innocent people. Well, maybe he is sometimes, because how do you know unless you check someone out? Police investigate innocent people, too.
The point is that when the purpose is mainly intelligence -gathering it is different than what the government might do to gather evidence for a crime.
I just know that Bush would be too busy trying to catch terrorists to be doing “domestic spying” on non-violent political opponents. His whole legacy depends on being about to stop terrorists.
I just know that after the 1970s that the government would be really touchy about that.
Some terrorists may hide behind dissenting groups so that they can scream about being framed for their views if they are arrested.
The ELF terrorists are a case in point.
This is not unusual. For example, in the late Soviet era, a NAZI movement organized under the cover of sports clubs. They were called “Lubertsi” because they came from a town near Moscow by that name.
In our country, there have been artists arrested because they were buying germs through biology professors to put on their art work. Strange things like that are going on in art, literature and music groups.
The FISA court, in reviewing the application,
is not to second–guess the executive branch official’s
certifications. United States v. Duggan, 743 F.2d 59, 77
(2d Cir. 1984). “Further, Congress intended that, when
a person affected by a FISA surveillance challenges the
FISA Court’s order, a reviewing court is to have no greater
authority to second–guess the executive branch’s certifications
than has the FISA Judge.” Duggan, 743 F.2d
Basically, the FISA Court does not decide if the Certification by the Executive Branch is right or wrong. Their job is to review the Certification to make sure all of the sections of the statute are contained in the Certification. If they find something that they believe is not in keeping with the statute, their only remedy is to have the FISA Court of Review decide the issue. There has only been one such case quoted previously by me on this blog where the FIS Review Court basically told the FISA judges that they do not have the authority to put their own requirements into the statute which is what they were doing.
An example of an ex-parte order that most of us have heard about is a restraining order. When someone wants a restraining order, they have to fill out a form. The form has to have certain criteria to be approved like a signed “declaration” by the person seeking the restraining order that describes the need for the order.
In the case of FISA, as stated above, “the FISA court is not to second guess the executive branch official’s certifications. ” Therefore, the Certification is already sufficient for the order, the FISA judge does not have to approve, and in fact can not, approve it. The Executive Branch has already approved it, the FISA judge just “reviews” and if it finds something out of place, it then send it to the FISA Review Court which has only been used one time.
SBD