The speed with which the Congress jumped on the Administration’s bandwagon to sanction the monitoring of Al Qaeda contacts here in the US is truly stunning. What was a big issue since the NY Times leaked misinformation in Decemeber to the Congressional rebuke on the FISA Court in the newly agreed to legislation agreed to yesterday illustrates the power of the Administration’s position.

I have long said the NSA story made no sense as reported. The NSA would never ‘bypass’ FISA since it’s mission is military monitoring of our enemy and was not something FISA had jurisdiction over. The rampant misinformation simply confused the issue for a time. But the FISC judges tipped their hands in the very beginning when the resigning judge complained the NSA ‘tainted’ the FISA process – not circumvented it! How can you taint something by bypassing it?

Some investigation into the creation of FISA leads one to the post Watergate Church committee and revelations that the NSA routinely caught up people in the US contacting our ‘enemies’ overseas in their monitoring efforts. Which is logical and right. We would hope when we monitor someone sworn to destroy us we don’t miss some contacts, especially those from the US. But we also learned that, by tradition, the NSA would purge the information on those people in the US from the intelligence they passed on to the rest of the government. Therefore never passing leads to FISA in essence.

Then we learned that the FISC (FISA Court) judges where the bulwark of the Gorelick wall – and proud of this role. This was learned from declassified rulings by the FISC judges in 2002, and the subsequent overuling of their opinion by the FISA Review Court. Through out the initial FISC rulings the judges pointed to the Gorelick memo are their bible, their reason to exist. Even though by the summer of 2002 it was clear the wall was what left us open to attack.

Then recently the FISC chief justices admitted in interviews they out of hand rejected all NSA leads as evidence of a risk to American lives and cause for a warrant making the person in the US a target of anti-terrorism surveillance. The NSA was not a sanctioned source of evidence in the minds of the High Priests of the Gorelick Wall. So they demanded the FBI develop independent evidence for submission for a surveillance warrant. Which made the 72 hours emergency provision in the FISA regulations a joke, and meant a high risk target would go unmonitored until evidence could be obtained separate from the NSA lead.

The big bad secret was not the NSA bypassing FISA, but the NSA trying to use FISA and the FISC judges making ridiculous guidelines that began the process of rebuilding their precious Gorelick Wall. But the Congress, as they learned what the truth of the story was, finally put an end to the obstructionist FISC. Pay close attention to certain details of the Congressional deal:

The bill, which is being advanced by Sen. Mike DeWine (R-Ohio), would allow warrantless surveillance for 45 days — and in some instances much longer — when one party to a communication is outside the United States and one party is linked to terrorism. The bill has positive and negative elements. It contains important restrictions on the use and retention of information, and it would require the administration to get a warrant as soon as the standards for one can be met.

Notice the resulting reality. NSA will monitor dangerous targets here in the US until the proper tribute can be collected for the Holy Priests of the FISC and the Gorelick Wall. In other words, NSA will keep tabs on these people while the FBI does what it can to get ‘untainted’ evidence different from the NSA.

But it would also allow surveillance to continue without a warrant if the administration certifies its necessity to a congressional subcommittee.

Of course, once this is done a few times and the NSA is proven to have accurately identified some bad people here in the country, the FISC will be stripped of its barriers and told to deal with the new world where the NSA is just as capable as the FBI in finding evidence of threats to Americans.

The NY Times has a better piece on this subject and the options available to the administration:

The Republican proposal would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was “probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization,” according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court.

But after 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant.

This matter is closed as far as continuing the program. If the FISC judges continue to resist considering NSA leads regarding possible terrorists in this country, they will be building the tomb for FISA itself. You can only turn down good leads so many times before it is clear to everyone your usefulness is over. Not to mention all the leaking of classified information some of these people may have done.

Leaking national secrets and ignoring threats? That will put you out of the national security business really quick!