Mar 30 2006
** Update: Jeff at Protein Wisdom has shared my perspective on the entire NSA-FISA issue from the beginning and is always worth reading on the matter – mainly because he writes better than I do! End update.
Powerline, enjoying the fruits of having the transcript of the FISA hearings, has found a segment of testimony which supports one of my major points regarding the NSA program. My main points are:
(1) NSA is legally authorized to monitor communications with our enemies. In that effort it targets people to monitor comprehensively – a legal target of a warrantless surveillance as a military action. Made even more legal in time of war.
(2) Prior to 9-11 the NSA would sweep up contacts between these enemy targets and either people in the US or US Citizens (who may or may not be in the US at all times). During this period before 9-11, and due to simple tradition aimed at keeping intelligence and law enforcement separate, the NSA would delete details on those people in the US or US citizens when they came across these leads, and not provide names, etc to domestic law enforcement.
(3) After 9-11 Bush’s order for the Terrorist Surveillance Program (a named I believe was coined after the NY Times leak on the effort) was to now have the leads from NSA passed to the FBI for review. Most of these leads apparently were innocuous, but there were some that led the FBI to go to the FIS Court and request FISA warrants – making the US contacts in communication with NSA surveillance targets now targets themselves of FBI surveillance.
(4) It was not actually the fact that NSA bypassed FISA – its was actaully that Bush was opening the NSA leads to FBI investigation which were making their way to the FIS Court – where these leads were being rejected by the head judges as ‘illegal’ leads! The so called ‘tainting’ of FISA some of the FIS Court judges complained about.
Powerline has a segment of the transcript from a former FIS Court Judge which confirms the first assumption I make above. In responding to Sen Durbin’s question of whether the President acted outside his authority, this was one judge’s response:
Judge Baker: Senator, did the statute limit the President? You created a balance between them, and I don’t think it took away the inherent authority that Judge Kornblum talked about. He didn’t call it “inherent,” he doesn’t like that. But the whole thing is that if in the course of collecting the foreign stuff, you are also picking up domestic stuff, which apparently is happening, I don’t know that that’s–it becomes a real question, you know, is he under his inherent power? Is he running around the statute?
So the judges are acknowledging that the NSA was detecting communications with people here in the US while performing their surveillance of our enemies. Then came this exchange regarding admissability of evidence from the NSA (emphasis added by Powerline):
Judge Kornblum: To be admissible, the evidence would have had to have been lawfully seized or lawfully obtained and the standard that the district judge would use is that, depending upon where this is, is the law in his circuit. In most of the circuits, the law is clear that the President has the authority to do warrantless surveillance if it is to collect foreign intelligence and it is targeting foreign powers or agents. If the facts support that, then the district judge could make that finding and admit the evidence, just as they did in Truong-Humphrey.
What this illustrates to me is a divergence of opinion by the justices on whether the NSA leads were ‘legal’ as part of probable cause showing. Which tends to support my last conclusion – FISA was not circumvented, some judges refused to accord the changes to the FISA statutes made after 9-11 because they felt, as the high priests of the Gorelick Wall, that there should be a permanent barrier between intelligence and law enforcement – no matter what the consequences.
If you think this is a harsh statement, then read Head FISC Judge Lamberth’s own words on the matter:
We [FISA Judges] worked to protect civil liberties while protecting the country itself. The judges asked themselves: Are we going to lose our liberties if we approve this kind of surveillance? We knew that the country has not always done things right.
Where is the question: Will Americans die if we do not approve the surveillance? Or how about this statement from the 2002 FIS Court decision, signed by Lamberth, which pined on and on about the Gorelick Wall and minimized the price we paid to keep it:
In significant cases, involving major complex investigations such as the bombings of the U.S. Embassies in Africa, and the millennium investigations, whem criminal investigations of FISA targets were being conducted concurrently, and prosecution was likely, this Court became the â€œwallâ€ so that FISA information could not be disseminated to criminal prosecutors without the Courtâ€™s approval. In some cases where this Court was the â€œwall,â€ the procedures seemed to have functioned as provided in the Courtâ€™s orders; however, in an alarming number of instances, there have been troubling results.
Emphasis mine. One of those cases was obviously 9-11. This decision was the FIS Court’s last attempt to salvage some remnant of the Gorelick Wall. It is a must read for those who want to peak into the mindset of the FIS Judges and their denial of what price we were paying for these barriers.
So we know the mindset of the Court was they felt the Gorelick Wall was a necessary evil, and they felt passing intelligence to law enforcement and prosecutors was not a good thing to do. Even given the ‘troubling results’. And we know the FIS Court rejected NSA leads for FISA warrant from yesterday’s reporting:
â€œIf a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,â€ said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. â€œI think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.â€
I get the feeling this was not a hypothetical, since the administration has said the FISA process was not nimble enough to monitor the threats they detected here in the US. Moreover, we find the rejection of a FISA warrant could lead to tipping off the subject of the request that they were under surveillance, as the DoJ stated in their recent response to Congress:
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, â€¦
Given some judge’s myopic focus on the threat to rights and missing the threat to life and limb, this concern seems valid. A judge focused on rights could easily feel compelled to warn someone they were being ‘illegally’ monitored by the NSA if that judge felt the surveillance was truly illegal.
With points (1) and (4) from above now apparently being established as what did happen, and how the NY Times got the story 180 degrees backwards, I think it is fair to say the media has a lot of explaining to do. And I await the transcripts of the hearings to see if I can discern more on what actually happened. Because the media accounts are simply evidence of what definitely did not happen, they are so flawed.