*** Welcome Powerline readers – always a pleasure to have you fine folks grace our blog. Powerline noted my over use of the word ‘bombshell’ – fair enough. I had to use something to pull out the really important news. However, the news that a FISA judge would potentially alert the target of surveillance that was refused a FISA warrant is not trivial. Since it was the first big item I discovered I think the ‘bombshell’ notation was valid there. Reader ‘Maestroanonymo’ comments that alerting the person being surveillanced is not the same as alerting the terrorists. Well, in a rosy world maybe true. But when we look at these situations we worry more about alerting the bad guys than marginal inconvenience of normal folks. There is no problem rejecting a wrongful search and alerting the person the act happened. I mean – Duh! What is dangerous is when a judge finds a technical fault and alerts a real Al Qaeda suspect here in country. And he then sends word to his compatriots overseas that they are being watched. And they disappear and are able later to kill people. That is the reasonable concern. Maestroanonymo is naive to ignore the potential damage possible. That is how all criminal negligence cases come about. Naive assumptions. Enjoy the post and please review the rest of the site while you are here ***

OK, Raw Story for once has some news! They obtained the DoJ responses to questions from Democrats and Republicans in Congress regarding the FISA-NSA flap. First a look at the responses to Republicans. This is a long post (because the documents are 40 pages in one instance). In fact, this may need to become a series of posts. There are some bombshells in the body of the analysis I labeled as such so you can skim down to them. Most are near the end of this monster. My apologies up front for the typos.

The one big news item out of all of this is the FISA rules demand that a surveillance request that doesn’t meet the the judge’s stringent standards is rejected and the target is notified of the surveillance. This would be unacceptable as not only the US person would learn they are being watched, so would the overseas terrorists – probably driving them underground. FISA would expose the NSA’s targets if used. OK, to the details (and this is a large, large post).

The first question is a good one noting the FIS Review Court’s role as the highest court in the land regarding foreign intelligence surveillance and its decisions in 2002 overuling the FIS Court. The question regarded the fact that much of the precedence came prior to FISA being enacted. Some of the response:

In Sealed Case, the Court of Review considered whether the FISA Court had statutory or constitutional authority to place restrictions on the interaction of criminal prosecutors and foreign intelligence investigators as a condition for granting surveillance orders. The Court of Review held that the FISA Court erred by placing those restrictions on the Government. Because prior court decisions had suggested that this was a restriction on the President’s constitutional authority…

…

But that fact does not undercut the decision: the whole point of the opinion was whether and to what extent FISA could modify the standards governing the President’s inherent constitutional authority. On this point, the Court of Review was clear: it “took for granted” that the President had inherent constitutional authority to conduct foreign intelligence surveillance and “assuming that is so, FISA could not encroach on the President’s constitutional power.

Well, that is a pretty good argument. And I would think you would need case law that specifically rebuts that interpretation to claim otherwise. And that has never happened:

Moreover, as your question correctly observes, no court since the passage of FISA has held to the contrary. For these reasons, the President was entitled to rely on the definitive pronouncement of the specialized court that Congress created to address precisely these matters.

The second question again asks if there is any case law that specifically rebuts the President’s claim of constitutional authority to execute the NSA Terrorist Surveillance Program (TSP). The answer is no and they site many cases that support the claim. So as far as established precedent is concerned, Bush is on solid ground.

The 3rd question is basically in the same line:

Is there legal authority to support the proposition drawn from the FISA Court of Review’s decision in In re Sealed Case,10 that the President continues to have the power to authorize warrantless electronic surveillance to gather foreign intelligence outside the FISA framework?

And the response is quite interesting:

As set forth below, the Terrorist Surveillance Program is consistent with FISA, and we need not consider whether the President may “gather foreign intelligence outside the FISA framework” to conclude that the Program is lawful.

How, you may ask, is the TSP consistent with FISA? Good question. Their answer begins with the obvious fact that the Authorization to Use Military Force (AUMF) includes ” “fundamental and accepted” incidents of waging war” (italicized quotes are the DoJ response text throughout). OK, I think most reasonably sane people would agree to that much. This then leads to the next logical step where “general force authorization resolutions … permit warrantless surveillance to intercept suspected enemy communications“. Well we should hope so! The last step is to recall FISA does accept and predict authorizations can come from statute outside of FISA to survey enemies. We have seen this all before but the argument is getting sharper. They did add that the FIS Review Court re-affirmed the Presidential constitutional authority – therefore making it the highest FIS Court ruling on the matter. Making it established case law as part of FISA.

Question 4 is sort of boring (and this post is already long!), so let’s skip to 5 which is interesting. It ponders the idea that, by signing FISA into law, President Carter was renouncing Presidential powers to FISA. Interesting – but silly. Congress cannot pass laws to change the constitutional boundaries and roles and responsibilities.

Question 6 asks which Presidents have claimed authority to monitor our enemies (let alone in a time of war) and the usual list of endless examples was presented from FDR to Clinton (and Gorelick).

Question 7 goes into a legal analysis of how the AUMF augments and supports a President’s inherent national security authorities under the constitution. To be against this means to be against the constitution as we know it.

Question 8 has some meat from where I am sitting:

On December 19, 2005, USA Today reported that the President’s executive order that authorized the surveillance program represented a “dramatic shift from restrictions on domestic spying imposed after exposure in the mid-1970s of NSA operations against U.S. citizens.”15

a. Is this claim substantiated?

b. Have previous Administrations, at the very least, recognized the President’s Constitutional duty to authorize similar programs related to national security?

c. The same article asserted that the Communications Act of 1934 as well as the U.S. Criminal Code have provisions that limit or ban the interception of electronic communications. How do these laws effect the President’s prerogative to authorize the NSA program?

Part A is the most important to me since I have claimed the NSA has not changed its mission regarding surveillance of our enemies It changed how and what it reports to the rest of the government. My contention has been that prior to 9-11 the NSA hid all information regarding people in the US and US Citizens caught in contact with our enemies. My speculation has been the change in 2001 was these leads were now being sent to the FBI to review, and those of concern became the basis of requests to the FISC for warrants to make people targets of full surveillance (not just their communications with terrorists watched by the NSA).

So, the question is how close was I in my speculation? Well, let’s find out together:

The Terrorist Surveillance Program is narrowly tailored to target only communications where one party is outside the United States and there are reasonable grounds to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist organization. The “reasonable grounds to believe” standard is a “probable cause” standard of proof,…and “probable cause” is the standard employed under FISA for approving applications for electronic surveillance.

…

President Roosevelt determined that those provisions do not prohibit federal government officials from gathering foreign intelligence for use within the Executive Branch, because the gathering of such information by the government does not constitute “divulg[ing] or publish[ing]” the communication.

For those wondering, yes the answer never addressed the question directly. So my speculation remains just that – speculation. But the part regarding how the government can collect information but not divulge or use (or use in a criminal case) does support the supposition that NSA would be collecting information for their purposes and not passing on anything (publish) regarding US Citizens and people in Country. So I read onward.

Question 9 discusses a professor Tribe diatribe to Conyers. For those so interested please feel free to waste your time. Question 10 is interesting – it ponders the constitutionality of FISA if it restricts the President’s ability to defend the nation in time of war. The answer is statutes that appear to restrict constitutional powers must be interpreted as to not restricting those powers (since laws cannot modify the constitution). This topic is expanded upon in Question 11.

There is one great point in the response to 11, which basically says the only proper interpretation of FISA, the AUMF and the Constitution is the one which provides harmony – not collision.

The Force Resolution authorizes the use of intelligence surveillance as an incident of force directed against al Qaeda and affiliated terrorist organizations, and FISA permits such future authorizations by Congress as circumstances warrant. The canon of constitutional avoidance comes into play only to the extent that the proper interpretation of these statutes is not otherwise clear. It suggests that, insofar as there is any ambiguity whether FISA, read in light of the Force Resolution, authorizes the Terrorist Surveillance Program, that ambiguity must be resolved to allow the President to authorize the Terrorist Surveillance Program

Without case law to the contrary, that makes sense. Question 12 asks how the NSA TSP relates to FISA. One intriguing tidbit is this:

Before answering this question, we note that the Department’s legal analysis assumes, solely for purposes of that analysis, that the targeted interception of international communications authorized under the Terrorist Surveillance Program would constitute “electronic surveillance” as defined by FISA. As noted in our January 19th paper, we cannot confirm whether that is actually the case without disclosing sensitive classified information.

This is probably one of those legitimate points where the FISA statutes are so technologically out of date that the NSA and Bush administration could claim there is no authority under FISA. It should be noted, then, that they are NOT making this case – just that they probably could. It seems they would rather fix the FISA holes than get a technical out.

Question 13 ponders if the NSA TSP makes it harder for DoJ to use FISA. I think it has become clear FISA makes it harder to use FISA – but of course the DoJ response was all kind words about FISA. They also supplied the Doh! response when they reminded Congress “FISA is not limited to the conflict against al Qaeda and affiliated terrorist organizations”. Which of course the TSP is limited to.

Question 14 asked if the FISA modifications made post 9-11 were not a clear indication FISA was to remain central to terrorist surveillance. The answer was interesting:

These amendments to FISA enacted after September 11th were crucial to correct certain systemic problems in the FISA process that impaired its effective functioning across the board, not simply with respect to the armed conflict against al Qaeda.

Which makes sense why we may not want to make the NSA TSP something more generic and broader. Ponder that civil libertarians. But there is more regarding my personal speculations on this matter:

Of particular importance were modifications that removed the “wall” between intelligence officers and criminal law enforcement officers. This “wall” was identified as crippling the Government’s use of foreign intelligence information well before the September 11th attacks and in contexts unrelated to terrorism. … Although the existence of the “wall” undermined the fight against al Qaeda, it also impaired the Government’s ability to conduct foreign intelligence surveillance in other critical contexts.

Emphasis mine. While the legislation removed the wall that stopped the flow of information from the military to law enforcement (can I read that into the order of the parties in the first sentence?) – it doesn’t mean the resistance by certain people was removed. In fact, the 2002 decision by the FIS Court that caused the first ever seating of the FIS Review Court was replete with the judges opinions the wall was good and needed to stay. And this is part of my theory. The FIS Court Judges resisted the Congressional changes and intent and they were the ones who refused to follow up dangerous leads here in America.

Qestion 15 is very direct and very good:

What is the rationale for authorizing a program to conduct surveillance in a manner that does not require prior judicial review by the FISA Court?

As is the response:

After September 11th, speed and agility were especially crucial in fulfilling the President’s constitutional obligation of protecting the Nation from further attacks. …. Among the advantages offered by the Terrorist Surveillance Program compared to FISA is who makes the probable cause determination and how many layers of review must occur before surveillance begins. Under the Terrorist Surveillance Program, professional intelligence officers, who are experts on al Qaeda and its tactics (including its use of communication systems), with appropriate and rigorous oversight, make the decisions about which international communications should be intercepted.

…

In order to obtain judicial review by the FISA court before
conducting surveillance, the Government must assemble a voluminous application, obtain the approval of the Attorney General himself and senior administration national security officials, submit the materials to the court, and await its decision.

This is very interesting, and critical. We have on one side US military personel who will lay down their lives on the battle field to protect this country and who know intelligence and Al Qaeda intimately, and on the other side we have some unaccountable judge who has no detailed knowledge and is more concerned the Gorelick Wall was removed than about the risk to America (something these judges have said to reporters in less pointed words).

Let’s look at it another way. The two chief judges said they would not review NSA evidence of Al Qaeda ties and activities in the US from the NSA – but required the FBI and DoJ to establish independent evidence of those ties for a FISA warrant. Now Bush is trying to protect lives – so is it fair to tell him he must fiddle why these judges risk OUR lives? Between a knowledgeable NSA analyst and a idealogue judge Bush is right to err on the side of the NSA analyst. At least he has his priorities straight.

Bombshell: How bad has the turf war been with these judges? Would you believe they threatened to tip off terrorists if the DoJ doesn’t get the forms right for the warrant and have an air tight case?

Great care must be exercised in reviewing requests for emergency surveillance because of the risks involved. Among other things, if the Attorney General authorizes emergency surveillance and the FISA court later declines to permit surveillance, there is a risk that the court would disclose the surveillance to U.S. persons whose communications were intercepted, …

Well I didn’t know this either, which is another strike against FISA – who seem more intent on protecting terrorists than Americans.

Qestion 16 is boring and wonders whether the ‘other statute’ in FISA is just one other statute specifically or any other statute. Since it doesn’t specify it is a mute point – it is general in statement therefore cannot be specific in interpretation.

Question 17 asks if other Presidents have performed signal intelligence of the kind the TSP uses. The answer is of course, but the question is vague in that the term ‘signal intelligence’s is not a clear, concise term.

Question 18 ponders, once again, the role signal intelligence plays in war under the AUMF. This time comparing it to abiltiy of the military to detain the enemy. One interesting detail noted in the AUMF which screams out for surviellance is this:

In this regard, it is important to note that Congress charged the President not only with using “all necessary and appropriate force” against the enemy, but to “determine[]” who the enemy is. Fulfilling those demands requires effective intelligence.

That is also a very strong argument for the NSA TSP. Note that Bush is on solid ground in monitoring our enemies. People are just questioning whether we should do something when we find them in country plotting attacks. FISA is too high a bar to stop an attack caught in progress and only days away from execution. The response provides a little reminder on why we cannot let process leave us unprotected:

Indeed, as recently as December 7, 2005, Ayman al-Zawahiri stated that al Qaeda “is spreading, growing, and becoming stronger,” and that al Qaeda is “waging a great historic battle in Iraq, Afghanistan, Palestine, and even in the Crusaders’ own homes.” … And earlier this year, Osama bin Laden warned that al Qaeda was preparing another attack on our homeland.

Question 19 asks if the AUMF intends the President to stop attacks before they happen or simply respond to attacks….Do I need to discuss the answer?

Question 20 asks if the TSP is overly broad in covering supporters of Al Qaeda verses agents of Al Qaeda. Seems someone is worried that supporting Al Qaeda might be confused with helping them. The answer is the TSP is looking for threats – not kooks, unless they pose a threat to us.

Question 21 addresses the Congressional Research Service (CRS) report – which most of the dumb questions are linked to – which claimed intelligence gathering is not ‘a use of force‘. My two cents: you cannot intelligently use force without intelligence gathering. Otherwise you shoot at anything and everything and sort it out later. The response says about the same thing – diplomatically.

Question 22: more on whether intelligence gathering is an aspect of war. Question 23: Does including all aspects of war, in war cause a problem? How do these people put up with these Congressional dufuses? Question 24: Tribe jumps on Hamdi and questions what is war anyway? (Yes, it is late, I am tired and I want to go have some fun!). Question 25: Did Congress intend “all necessary and appropriate force” to mean ‘all‘ (like, intelligence gathering)?

Question 26: ignoring the AUMF does the President have any other authorities. Answer: ever heard of the Constitution and all that case law on the matter? Question 27: National Review said the President unilaterally interpreted the law – is that true? Me: who the Hell cares what National Review said???? I detect a trend here. On the good, reasonable questions were answered in the front, and the back is left to addressing the stupid questions.

Question 28: Leahy wants to limit the 2001 AUMF to exclude intelligence in 2006 – did the AUMF authorize gathering intelligence on our enemies? By now you all know the answer so I will not insult your intelligence. Question 29: More AUMF confusion.

Does anyone find it scary all these Congressman and woman don’t seem to understand what they voted for? I mean, this is the GOP question list!

The next set of questions are focused on a new topic – the Program’s review process. Question 30 wants to know details of the review process, what happened before the program was authorized and when it was authorized. Amazingly the question is about 3 times larger than the answer:

The President sought and received the advice of lawyers in the Department of Justice and elsewhere before the Program was authorized and implemented. The Program was first authorized and implemented in October 2001.

Why so quickly after 9-11? I would say because everyone knew the Wall was a mistake, not passing leads from NSA to the FBI was a mistake and that the time had come for the obvious fixes. Which probably means there are also much deeper reasons about why this was done slinking around the classified world. It is probably not the first failure of the Wall, and not the first warning.

Question 31 is the same as 30, but the answer points to Hayden’s recent Washington Press Club remarks as the definitive description of the review process. Question 32 is interesting:

To what extent were FISA judges informed of the program? Did FISA judges who were informed about the program object to it? In what manner were objections raised? How did the Administration respond to the objections, if they were raised? If a Member had problems with the program, what were they legally permitted to do?

Answer: we can’t tell you. Arrgghhh. Same dodge on 33. 34 and 35 asks about the Senate briefings and who was in on those. Nothing new there. 36 seems to want to know why all of Congress is not being informed (poorly worded question). Everyone should know the answer to that one.

Question 37 discusses another newspaper story, this time about comments from former Senator Bob Graham. Of course Graham’s comments were confused statements about changing standards for wiretaps (which has never been claimed or established). The rest was more on the details of reporting.

Bombshell: 38 is a good question:

The January 17, 2006 New York Times article also quoted an anonymous FBI agent who allegedly said that the program uncovered no active al Qaeda networks planning attacks inside the U.S. Does the President conduct ongoing evaluations of the effectiveness of this program?

The important part of the answer is (noting the modifiers ‘active‘, ‘networks‘ and ‘planning‘ in the claim):

the statements of General Hayden and Director Mueller at the February 2d Worldwide Threat Briefing are illustrative. General Hayden stated that “the program has been successful; . . . we have learned information from this program that would not otherwise have been available” and that “[t]his information has helped detect and prevent terrorist attacks in the United States and abroad.” Director Muller stated that “leads from that program have been valuable in identifying would-be terrorists in the United States, individuals who were providing material support to terrorists.”

Question 39 begins the section on “The Surveillance Program“:

Please explain the exact scope of the terrorist surveillance program described by the President. Specifically, please explain whether the program is designed to intercept only international communications or whether it is also designed to intercept domestic communications.

The well known answer for those stilling open to information:

The Terrorist Surveillance Program targets for interception only those communications where one party is outside of the United States and there is probable cause to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. The Program does not target for interception wholly domestic communications.

I will be the first to point out, in the age of mobile phones, blackberries and laptops that source and destinations of communications move around while their designations (phone number, IP address) do not. Therefore, it is possible to trap communications which were originally partially or wholey overseas which then MOVE to the US at some later time. That is one way to get a terrorist in the US talking to a US citizen overseas. They both start out overseas and then the terrorist makes it here.

Bombshell: Question 40 refers to the NY Times leak of the program and asks if the TSP was an effort to gather evidence without a warrant – as the NY Times claimed. The answer is illustrative to my speculation about what is really happening here:

To the extent that your question about using the Program “to search for evidence” seeks to determine whether the Program is designed for conventional law enforcement purposes, that is not the purpose of the Program. The purpose of the Terrorist Surveillance Program is not to bring criminals to justice.

This is a very important point. A military program designed to detect attacks can easily detect enemies within our borders – especially in this form of war with terrorists. The program Bush instantiated simply passed these leads to domestic law enforcement for investigation, and if necessary full surveillance under a FISA warrant. This caused some FIS Court judges to see their warrants ‘tainted’ by NSA evidence. Bush never once sidestepped FISA. The FISC refused to hear evidence from NSA on possible dangers in America. Where is that headline?

Question 41 beats the dead horse regarding the parties all being in the US (why do people not grasp multi-party communications?). Question 42 goes into some details on how cell phone numbers are tracked, and the response is rightfully: we cannot tell you.

Bombshell: Question 43 is a good one:

The President explained that these intercepts were related to the war on terrorism and that, “Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.”40 Is this still true?

And the answer is:

The President’s explanation remains entirely correct.

Translation: no fishing expeditions. All links to people in the US or to US citizens are offshoots from known terrorists being monitored.

Bombshell: Question 44 discusses the TSP and how it relates to the 4th amendment. The answer delves into “reasonableness” and intelligence gathering on enemies verses evidence gather for law enforcement, best summarized by this snippet:

In particular, the Terrorist Surveillance Program is undertaken to prevent further devastating attacks on our Nation, and it serves the highest government purpose through means other than traditional law enforcement. The Program is designed to enable the Government to act quickly and flexibly (and with secrecy) to find agents of al Qaeda and its affiliates—international terrorist groups which have already demonstrated a capability to infiltrate American communities without being detected—in time to disrupt future terrorist attacks against the United States. As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.”

Again, it is important to understand legal issues are the purview of FISA, not NSA. If the FIS Court continues to refuse evidence from the FBI and NSA because the NSA detected the lead as part of its mission that has no bearing on NSA’s mission.

Bombshell: I have long pointed out you can be surveillanced if you are caught up in a legal surveillance of someone else. And the response does point this out:

…individuals have a substantial and constitutionally protected reasonable expectation of privacy that their telephone conversations will not be subject to governmental eavesdropping. Although the individual privacy interests at stake may be substantial, it is well recognized that a variety of governmental interests—including routine law enforcement and foreign-intelligence gathering—can overcome those interests.

The highlighted text illustrates when you can be monitored without warrant on you. That is when you are pulled into a legal surveillance of someone who is being monitored. This is clearly the reason why people in the US or US Citizens who are detected by the NSA contacting our enemies are no different than people detected contacting a drug lord under warranted surveillance. They are the target and everyone else is a contact who are being monitored.

Question 45 again tries to link a program designed to monitor our enemies in a time of war to a criminal standard for probable cause. 46 is a repeat asking for what checks are in place to protect civil liberties (which is the attempt to go to FISA for warrants on leads, which the FIS Court is abdicating their responsibility in).

Bombshell: Question 47: Pay attention Rockefeller and Durbin – this question is for you!

Press reports have stated that the Justice Department has opened an investigation of the leak of information regarding the highly classified NSA program.42 Does the Department consider the unauthorized disclosure of information about this program to be a leak of classified information? Has the Department, as reported by the press, opened an investigation of the leak of this information?

I will post the full answer for this one:

The Department of Justice has initiated an investigation to determine whether the law was broken when the existence of the Terrorist Surveillance Program was leaked to the news media. If it is determined, after a careful evaluation of all the evidence, that a crime has been committed, then Department of Justice officials will have to decide whether to bring appropriate criminal charges against those responsible. Consistent with established Department of Justice practice, however, we cannot comment further on this ongoing investigation.

Well, that is to be expected. Question 48 asks about the Washington Post story claiming “Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well.” Which translated means only 10 people a year from all the leads the NSA passed on were worthy of going to FISA for surveillance warrants for all their communications. The question then diverts itself to ask again about were these people in the US monitored communicating with people in the US. How many really goog questions could come from that lead in? It boggles the mind.

Question 49 goes over media claims the TSP data mines to get its leads on US citizens or people in the US. The response is no it does not. The TSP is clearly a way to pass leads. NSA may find terrorists overseas using data mining and sifting. But that is not the point where people in the US or US citizens get entangled with the NSA. It is after a target is being monitored.

FINALLY! The last question which is a multi-part question I will post in its entirety:

a. Is the NSA surveillance program a single program, which operates under a single authorization? What is the scope and/or nature of the program(s)?

b. What are the criteria and triggers for collection and/or analysis of information? How do these criteria and triggers differ from those in effect prior to September 11, 2001?

c. Were laws violated and, if so, who bears responsibility?

d. What information is obtained through this program? Is it shared with other agencies? Once obtained, how is it used and/or stored, whether by NSA or other agencies?

The answer is a general punt. The TSP responded to here is a very narrowly focused aspect of the NSA’s efforts. It seems to be the process of passing leads from NSA efforts which discover risks here in the US to domestic law enforcement.

Through out the DoJ tries to educate on the boundaries of agencies and law and charter. NSA monitors our enemies attempting to identify them, and learn their plans. It is not gathering evidence for court. It does happen upon people in the US or US citizens in contact with the terrorists they target. These they now pass onto DoJ and the FBI for investigation. Prior to 9-11 they would not because of the Gorelick Wall and other ‘quaint’ legal traditions. The FISA process is a separate process outside the military mission. By confusing the two the NY Times exposed a key national security defense and tipped off the terrorists.

What stunned me the most was the fact that a surveillance rejected by the FISC would lead to the target of the surveillance being notified they were being watched. This alone makes FISA a dangerous option. Realize that the NSA could keep limited tabs on the communications between the US based terrorist and his overseas masters indefinitely, while the FBI attempted to find independent evidence for the FIS Court judges who have refused threats coming from the NSA.

Interesting. Maybe tomorrow I will do the dem questions (and maybe I never will!).