Jan 17 2006
As I converse with the folks at Powerline I am seeing more and more evidence that my suspicions are on correct. Bush did something in 2001 that changed the way things were being done prior to 9-11 – we know that much from all the crazy impeachment talk.
Today’s NY Times story discusses in great detail the tidal wave of leads coming out of the NSA after 9-11, causing the FBI to use lots of resources to track the leads down here in the US. That permeates their story. So this is the result of the Bush action then.
OK, then that also is the clearest indication of what changed in Bush’s 2001 order: he opened the flow of leads from NSA monitoring regarding communications between people overseas and people here in the US. The NSA mission probably did not change, but their target list grew as we got intel from the battlefield and arrests. But what probably changed is how easily it flowed now to domestic law enforcement.
This new flood the FBI sources whine about is evidence of the Bush order. Not any attempt to go around FISA, just opening a flow of leads that was pretty much shut prior to 9-11.
And this theory is further supported by the fact the FISA court was expanded in 2002 from 7 to 11 members, and at least one justice (Robertson of course) had to be local to respond to emergency FISA warrant requests. This was due to the new wave of requests due to the wall being torn down.
Seeing the obvious results of the Bush order, as clearly described by the NY Times, it seems clear the only change was that leads coudl now easily be passed from NSA to the FBI. Many of us assumed this was always the case. Now I believe that was one of the systemic problems we had pre 9-11 and was the essence of the Bush order.
I have been away all day at meetings and have come back to see a lot of interest in this post. Welcome readers from Captain’s Quarters, Powerline, Michelle Malkin, Real Clear Politics and many others. John Hindraker at Powerline emailed me to ask
I’m not sure, though, that the benign way you describe the NSA’s activities, if I’m understanding you correctly, is consistent with how the administration itself has described the program. If all the NSA did was to collect names and phone numbers by spying on al Qaeda members overseas, and turn those names and phone numbers over to the FBI for investigation, there would be no legal controversy at all. I think the administration has acknowledged that in some instances, the NSA did more than that; i.e., it actually went ahead and targeted Americans for surveillance without using the FISA process. What am I missing?
John, I do not think you are missing anything. A lot of people are going to say I am being too simplistic, and that could be true. But we have all made assumptions that may not be true.
In my response to John I made the following observations (edited here a bit):
My suspicion is that prior to 9-11, and in deference to the Gorelick Wall, all surveillance of communications on persons in the US went through FISA. When NSA learned of a contact between someone of interest overseas and someone in the US they did not pass the lead onto the FBI. This would violate the practice of going through FISA. Not that it was required to be this way, it was simply the conventional process – a prcess of being way overly cautious.
This seems to be the case because today’s NY Times article clearly shows a unexpectedly large wave of leads began to come out of the NSA post 9-11, once the Wall was removed. This clearly indicates this flow is new and was hard to deal with logistically.
It is highly possible that for many people, for no good reason except habit, were overly cautious and demanded information for probable cause for their FISA warrant applications not include intelligence. The 9-10 mindset we have seen before.
There have been articles and decisions that hint that this was how the process was broken prior to 9-11. After 9-11 many people probably argued that intel gathered by NSA on leads here in the US were legitimate and legal leads, as well as probable cause. And that rubbed a lot of purists the wrong way.
From your post where we can see the AG’s precise wording:
” ….we’re talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda.”
Clearly one end is overseas, and typically this is the terrorist end. This again is partly confirmed by the Times story today because of the numerous dead ends followed in the US by the FBI. No one disputes this to be an issue when presented this way.
Now there are indications that in some situations the terrorist was inside the and possibly a US person was overseas. I have discussed this very rare and interesting scenario with those on Volokh. There may be a case were a US citizen was at some point determined to be an enemy combatant. They could be overseas or here, and their communications where monitored. I think this is the one small grey area that could generate some debate. But enemy combatants lose their civil protections, just as anyone who joins the enemy.
The AG consistently chooses words to allow for this configuration of target vs. contacts. He has never wavered from this. So I suspect this is the scenario they are dancing around.
If true, it would be the exception to the rule. No matter what, there is always one end overseas, giving NSA jurisdiction to monitor the communication.
I think this is the case. One reason is because of reactions of those concerned FISA judges who never focused on warrantless surveillance and their authority, but only about ‘tainting’ of FISA warrants. I may be wrong. I see no evidence of it – yet.
I have been repeating my claim over and over again that NSA was getting leads on terrorist communications with people in the US and passing these tips to the FBI – as we would expect them to do.
Here is one post out of many where I pointed out how NSA was not a bypass for FISA, but an organization and process the preceded FISA warrants when tips were found to people in the US.
Here I pointed out where the Washington Post vindicated my claims that there was no bypassing of FISA, but what was going on was certain people where not following THE NEW LAW as set in the Patriot Act. These changes to remove the irrational Gorelick Wall allowed a freer flow of leads amongst agencies and departments working to protect us from terrorist attack. All the claims to date revolve around the vague and confusing claim people in the US have had their communications monitored without a warrant (which happens all the time) and that NSA intel ‘tainted’ FISA warrants in SOME people’s opinion. The Post article clearly confirms the only evidence we have is leads from NSA were being passed to the FBI and used to obtain FISA warrants.
While Al Gore blabbers on about not following the law, it is clear a certain judge and many career government officials resisted and fought the changes made in light of our experiences on 9-11. And therefore they are the ones not following the law, and therefore the will of the people.
The key admission by the NY Times is in the early part of the story
In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.
But virtually all of them, current and former officials say, led to dead ends or innocent Americans.
But, many did not lead to innocent people but were key to stopping attacks here in the US and around the world. That is the way this works. We get leads, we check them out and we hope we never once miss the lead that would have stopped innocent people from dying. There is no way to distinguish a good lead from a dead end lead without investigating!
As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for the eavesdropping program, which did not seek court warrants, one government official said. Mr. Mueller asked senior administration officials about “whether the program had a proper legal foundation,” but deferred to Justice Department legal opinions, the official said.
And of course the NSA has legal authority to monitor known and suspected terrorists overseas. They have declared war on us – in case anyone missed it. And of course, if someone in the US is in contact with that overseas ‘target’ of NSA surveillance those communications with the terrorist are legal to monitor since the target, the terrorist, is in the legal purview of the NSA.
What the NSA cannot do, without the FBI going to FISA for a warrant, is make the person in the US the TARGET of a surveillance effort and thus monitor ALL their calls. The calls to the NSA target are fair game without a warrant.
And no one has yet claimed the NSA targeted a person in the US without FISA approval – not one! They all point to the legitimate and legal monitoring of calls caught up in the surveillance of the overseas target. So many supposed lawyers keep missing this simple but key point. All the people in contact with a target of surveillance are being monitored without a warrant specifying their name.
But a vast number of legal experts from all over the government have reviewed this arrangement and accepted it as legal. NSA watches the terrorists overseas, and all communications with them. FBI monitors the terrorists here with help from the NSA for overseas contacts under FISA warrant.
More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret eavesdropping program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.
Oh, now the story changes. It was not that NSA was doing something illegal in monitoring overseas targets and passing tips to the FBI, it was they were passing so many tips these self appointed, Presidents in waiting determined it was not a proper use of resources! I suggest that, instead of illegally exposing a highly classified program to the press, these aspiring leaders of the free world go out and win a Presidential election – if they want to play President.
We’d chase a number, find it’s a schoolteacher with no indication they’ve ever been involved in international terrorism – case closed,” said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. “After you get a thousand numbers and not one is turning up anything, you get some frustration.”
Well poor baby! Most of law enforcement is grunt work. Sounds more like someone upset they cannot be an instant national hero. What a whiner!
The differing views of the value of the N.S.A.’s foray into intelligence-gathering in the United States may reflect both bureaucratic rivalry and a culture clash. The N.S.A., an intelligence agency, routinely collects huge amounts of data from across the globe that may yield only tiny nuggets of useful information; the F.B.I., while charged with fighting terrorism, retains the traditions of a law enforcement agency more focused on solving crimes.
Finally, the mea culpa. The NY Times is trying to get itself out of hot water. It is trying to make it appear like this was all some innocent mistake and they were caught up in an internal feud. Well they weren’t caught up in an internal feud. They were duped because they wanted Bush so bad the believed anything these media addicted malcontents would say. Without question.
Several of the law enforcement officials acknowledged that they might not know of arrests or intelligence activities overseas that grew out of the domestic spying program. And because the program was a closely guarded secret, its role in specific cases may have been disguised or hidden even from key investigators.
All the officials spoke on condition of anonymity because the program is classified.
Translation: their sources are equivocating.
Some of the officials said the eavesdropping program might have helped uncover people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of the activities involved recruitment, training or fund-raising.
Translation: the program was getting some results.
Immediately after the Sept. 11 attacks, the Bush administration pressed the nation’s intelligence agencies and the F.B.I. to move urgently to thwart any more plots. The N.S.A., whose mission is to spy overseas, began monitoring the international e-mail messages and phone calls of people inside the United States who were linked, even indirectly, to suspected Qaeda figures.
NSA was doing its job monitoring overseas targets – especially their communications with people in the US. Which is completely legal, as long as those are the only communications monitored concerning the people in the US.
Administration officials told Mr. Mueller, the F.B.I. director, of the eavesdropping program, and his agency was enlisted to run down leads from it, several current and former officials said.
The FBI was given the leads for people in the US, which is their area of jurisdiction. Then the NY Times outright lies to its readers
F.B.I. field agents, who were not told of the domestic surveillance programs, complained that they often were given no information about why names or numbers had come under suspicion.
Folks, the NSA is monitoring overseas terrorists. Their targets are not domestic. The fact a terrorist calls someone in the US means the terrorist brought that US person into the surveillance – not the NSA. The same goes for people who contact the terrorists. It is their act of communication that brings them into the surveillance. The NSA is not running a domestic surveillance program in these situations. And that is WHY the FBI is not told of the source of the lead. That is classified!
Here is an example of a wannabe President resisting order and the law
former senior prosecutor who was familiar with the eavesdropping programs said intelligence officials turning over the tips “would always say that we had information whose source we can’t share, but it indicates that this person has been communicating with a suspected Al Qaeda operative.” He said, “I would always wonder, what does ‘suspected’ mean?”
“The information was so thin,” he said, “and the connections were so remote, that they never led to anything, and I never heard any follow-up.”
No s**t Sherlock! The tripping factor is the fact there was a communication with a known terrorist. Thin, but sufficient to investigate. As I pointed out there will be tons of innocent communications such as hotel and rental car reservations, etc. But in all those innocent communications there may be a tip. What this lazy jerk is saying is he has more important things to do than run down all these tips. Since every good tip possibly means saving the life of even one person, where does this idiot get off complaining it is a lot of work to find one real lead?
In response to the F.B.I. complaints, the N.S.A. eventually began ranking its tips on a three-point scale, with 3 being the highest priority and 1 the lowest, the officials said.
Since the wall had been just torn down, the two efforts needed to work out the best way to work together. While this simply means they had to triage the information coming in, what it really says is the FBI had no damn clue the volume of potential leads that were sitting behind Gorelick’s Wall.
And that is another aspect of this. Government workers hate to be asked to perform miracles. They hate failure. Too many hate to work. Not all, but more than you want to know. So when the intel damn broke the domestic side was unprepared. And so then the complaining began. And when they did not get their way, complainers turned to the tried and true DC power play: leak to the press.
Only this time they leaked critical information on a classified program. This time they crossed the line. And the NY Times still doesn’t fully understand what they got themselves into. They are only naive journalists who have a much higher impression of themsleves than they deserve.
The views of some bureau officials about the value of the N.S.A.’s domestic surveillance offers a revealing glimpse of the difficulties law enforcement and intelligence agencies have had cooperating since Sept. 11.
Interesting glimpse? How can the NY Times be so stupidly naive? This is not a glimpse into the challenges inside the government. This is a bunch of malcontents destroying our national defenses, and a gullible press buying into these malcontentâ€™s Chicken Little stories because they are desperate to get Bush.
The N.S.A.’s legal authority for collecting the information it passed to the F.B.I. is uncertain. The Foreign Intelligence Surveillance Act requires a warrant for the use of so-called pen register equipment that records American phone numbers, even if the contents of the calls are not intercepted. But officials with knowledge of the program said no warrants were sought to collect the numbers, and it is unclear whether the secret executive order signed by Mr. President Bush in 2002 to authorize eavesdropping without warrants also covered the collection of phone numbers and e-mail addresses.
For those who know, this is an enormously important admission by the Times. The pen registry information, gathered by the FBI and not the NSA, can be obtained without warrant. In the process I laid out in previous posts, I mentioned that leads sent to the FBI by the NSA would need to be evaluated to make sure a FISA warrant was not needlessly obtained for a hotel reservation number. And that is what this step in the process is. Combined with the Washington Post article, I feel my position has been completely vindicated. The process was working as we wanted. Leads on people in the US gleaned from overseas surveillance detected by NSA were being passed to the FBI, who checked them out and then went to FISA for the important cases.
And why is the NY Times is in a world of hurt? Because this is the thinking of one of their key sources
“It affected the F.B.I. in the sense that they had to devote so many resources to tracking every single one of these leads, and, in my experience, they were all dry leads,” the former senior prosecutor said. “A trained investigator never would have devoted the resources to take those leads to the next level, but after 9/11, you had to.”
You are damned straight you have to. It was lazy bureaucrats who did not connect the 9-11 dots, and now these same lazy bastards are complaining they have too much grunt work to do. That is the motivation of the NY Times sources – people who feel they cannot be bothered.