Mar 13 2006

FISA Court Now Under Scrutiny

Published by at 12:50 pm under All General Discussions,FISA-NSA

Those who visit this blog know I have been suspect of the entire NSA -FISA issue since day one when we learned the resigning Foreign Intelligence Surveillance Court (FISC) judge was not concerned about NSA bypassing the FISC, but was stated to be worried about the NSA ‘tainting’ the FISA process. That can only mean the NSA leads were polluting the FISC, not running around them.

Since that time my position has been vindicated over and over, as we learned that prior to 9-11 the NSA would not normally pass along intel to law enforcement regarding people in contact with terrorists if those people were in the US at the time of the contact.

This had been ‘tradition’ from the time of the Church Committee and the creation of FISA and the FISC. Apparently what changed after 9-11 is the Administration realized that there was no legal basis to bar the passage of leads from the NSA to the FBI, and if the FBI felt they were important to have those leads then taken to the FISC to put the person in the US under surviellance. It is also apparent from comments made by FISC judges to the press and in their opinion in 2002 that they refused to accept leads from the NSA as evidence of probable cause. This resultant conclusion is found in my posts on the subject here. The latest summary with important links to previous posts is here.

Now the FISC itself is coming under Congressional scrutiny to determine why the FISA process has become so dysfunctional it cannot accept critical, important leads on possible terrorists in country if they come from a federal agency which some maverick judges have determined as being invalid sources of fact. From House Permanent Select Committee on Intelligence we find this

Fourth, the Committee expects to hold a public hearing on general issues relating to the FISA process and FISA modernization in the near future. There has been widespread misunderstanding and misinformation circulating about FISA. It is important that the public have an opportunity to understand, to the extent possible in an open session, what is myth and what is reality. These will be comprehensive efforts to review not just issues relating to the program described by the President, but also equally or more pressing issues relating to FISA that may be hindering our nation’s ability to conduct foreign.

Now we are getting to the core problem: why is the FISC refusing to consider important, valid leads?

4 responses so far

4 Responses to “FISA Court Now Under Scrutiny”

  1. HaroldHutchison says:

    Interesting coincidence:
    The head of the FISA court, Judge Colleen Kollar-Kotelly, also issued an order halting the military commissions in the Hamdan v. Rumsfeld case.

  2. Fred Fry says:

    One issue that should be address is the fact that the US has a list of 300,000+ suspected terrorists. Just how is the FISA Court going to issue wiretap warrents for all of them? (Or do people suggest that we should not be listening to all these people?)

  3. mervb says:

    These cases point out the problem with the lawfare approach to terrorism as opposed to the warfare approach. What the judges on the court are probably concerned about is a line of cases that result in the “exclusionary rule.” This rule excludes evidence that is derived as “the fruit of the poison tree,” i.e. if the lead came from a source that was not based on a warrant, then it can’t be used if a warrant was required to begin with. This should be described as the FISA Catch 22.

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