One thing is always a given, Liberals avoid debating any issue on the facts and always screw them up or deliberately misrepresent them. Not sure which is worse, ignorance or deciept, but it is not hard to realized this country deserves and needs neither. Case in point is the Liberal lines on the NSA’s Terrorist Surveillance Program (TSP), which for the first time provided the NSA a way to alert the FBI of possible leads on terrorists here in the US based on communications with known terrorists and their affiliates overseas. Those who have been long time readers of this sight know I have compiled the actual details of the NSA and TSP and the FISA Court from news reports and on the record comments – some dating back to the Church Commission in the late 1970’s when FISA was being conceived. But for the new readers I will attempt a brief synopsis (a previous post with some critical links is here and here, all my posts are here). For the sake of expediency I will not be doing the links back to the key posts here.

Contrary to the reporting by the NY Times and the echos that still reverberate through the drive by media, the NSA did not bypass the FISA Court in response to the establishment of the NSA TSP. In fact just the opposite occurred. For the first time ever, after 9-11, the NSA was allowed to pass leads it detected in its surveillance of overseas terrorist targets to the FBI. That’s right, prior to 9-11, if the NSA caught Osama Bin Laden talking to Atta while Atta was in the US the NSA could not alert the FBI and have the FBI get a FISA warrant to watch Atta. And while this aspect of “The Wall’ was basically traditional as opposed to legal, it was considered etched in stone. Moreover, the FISA Court would not accept ANY probable cause for a FISA warrant based on the originating lead being from an NSA intercept associated with an overseas target.

To those new to this blog this may seem wild and crazy, but the truth is it is clear and has been verified in many ways by administration sources, by media reporting and by statements by FISA judges. The fact is that after 9-11 it was realized how suicidal this tradition was in the modern world and modern threats. So the TSP actually does not create anything new in terms of the NSA mission, it allows the NSA to notify the FBI when their targets overseas communicate with someone in the US. The FBI investigates the lead, and if there is cause for concern they can now take the case to the FISA Court – under very strict conditions (and this is the major aspect of the TSP).

In its earliest form right after 9-11, only the Chief FISA Judge knew the court was reviewing warrant applications that had originated with an NSA intercept. These cases could not (and still cannot) rest on the NSA intercept alone – key to another lame myth from the ignorant or decieptful left. The only judge who knew about the TSP was the Chief Judge, until the NY Times exposed the program (the existence of which was the only thing accurate in the reporting). This blogger noted that the Judge who resigned in protest did so because the NSA evidence had ‘tainted’ the FISA process. That was the key to realizing that NSA data was flowing to the FISA Court, not around it. But back to the FISA Court restrictions. To this day no FISA warrant can be requested based on the NSA intercepts alone. Both the current and previous FISA Chief Justices are on the record stating this to the WaPo. Therefore it is IMPOSSIBLE for the NSA to get a warrant for these intercepts! It is illegal. So anyone who claims NSA should get a warrant from FISA is just plain ignorant of the facts (or being deceptive)

With the facts established, let’s look at this Liberal piece about the NSA TSP and do a fisking for the benefit of all those who are not aware of the truth surrounding this critical (and successful) program:

On December 17 of last year, during his weekly radio address, President Bush confirmed reports by the New York Times and CNN that, following the 9/11 attacks, he had given the National Security Agency (NSA) authorization to eavesdrop on Americans communicating with people overseas.

Emphasis mine of course. This is false. To be a candidate lead the NSA can pass on to the FBI and possibly FISA Americans must be in contact with a known terrorist or associate already under NSA surveillance. That is what restricts the TSP from being a vacuum cleaner program and a common sense path to alert our nation’s law enforcement agencies that one of the bad guys we are watching made contact with someone here in the US. Just realize that the only way to stop that lead being passed to the FBI is to (a) either stop listening in on terrorists overseas or (b) when we do get a lead like this, throwing it away like we did before 9-11 and hope we only lose another 3,000 innocent lives – not more.

The NSA, which eavesdrops on billions of communications worldwide, is barred from domestic spying without a warrant, as required in the Fourth Amendment of the Bill of Rights.

This is true and is still true under the TSP. Domestic Spying implies – legally – that the target of the surveillance is in the US or a US Citizen. A FISA warrant is still required to monitor all the communications of a person in the US. Targets are different from contacts who are picked up talking to targets. During a warranted surveillance of a crime boss here all communications to that target our monitored. So if another American is calling this target every week, then those calls are fair game. Same for terrorists overseas. If the terrorists communicates with someone here, that communication should be fair game. But somehow tradition established a super wall that treated an overseas target different from a US Target! The key is who is the target, verses who are contacts swept up while listening in on the target. It is still illegal to monitor all the communications of a person in the US (making them the target) without a warrant.

In emergencies, the NSA may even conduct domestic surveillance for 72 hours without a warrant. But by the end of that three-day period, it must obtain a warrant. Over the past nearly 30 years, the FISA Court has denied only a handful of the thousands of warrant requests. And there is no indication that the 72-hour emergency provision has been inadequate to deal with serious terrorist threats.

Unless you realize that the NSA intercepts cannot be the only evidence of probable cause for a FISA warrant! The FBI must find independent evidence of a possible threat in order for the 72 hour warrant to be extended. And let’s also be clear here, the NSA doesn’t apply for warrants to FISA – they have no standing at the Court. Only the DoJ can apply for warrants. Without independent, non-NSA evidence, a warrant will not be granted. The fact the DoJ did not waste time submitting clearly doomed warrant applications so the FISA Court could reject them does not mean the process can be used. That is a very simple minded way of viewing legal processes.

Interestingly, during the December 17, 2005 radio address, President Bush cited the case of 9/11 hijackers Khalid Al-Mihdhar and Nawaf Al-Hazmi as a prime example of the need for warrantless surveillance. This duo, he said, “communicated while they were in the United States to other members of al Qaeda who were overseas, but we didn’t know they were here until it was too late.” It would be difficult for the president to come up with a worse example to make his point.

The various official 9/11 investigations showed that the FBI, CIA, and NSA all were monitoring Hazmi and Mihdhar. In San Diego, the duo even lived with Abdussattar Shaikh, an acknowledged undercover asset of the FBI. The two also had regular contacts with San Diego area militant jihadists under FBI surveillance, such as Omar al-Bayoumi and Osama Mustafa. FBI Agent Stephen Butler made repeated efforts to have them arrested, but he was overruled from above.

Actually, this is the perfect example because administration officials are illustrating to things here: (a) they had NSA intercepts of these people communicating from the US because the NSA was monitoring the masterminds overseas and (b) the fact the NSA leads were not allowable as probable cause evidence is why the threat of these two men was not visible to the courts or DoJ. The NSA was not allowed to pass on what they had learned. Thus there was not the final bit of evidence available to realize how dangerous these people were. The reason the arrests were overuled was probably because the did not have the NSA Intercepts which would push the case over the threshold to warrant surveillance. Again, Bush and Gen Hayden have clearly said we had the information, but were not allowed to pull it together because prior to 9-11 NO NSA leads could be iincluded in a FISA warrant submission. Post 9-11, under TSP, NSA leads can be included if there is supporting, independent evidence from the FBI or other law enforcement sources.

Moreover, a review of the 9/11 hijackers’ visa applications by a panel of former consular officials revealed that all 15 of the publicly available applications, including Mihdhar’s, had been issued in violation of existing law, despite blatant red flags that should have disqualified all of them. Thus, there is no reason to believe that the kind of extraordinary power demanded by President Bush would have provided any more needed intelligence or that it would have been acted on any better than the abundant data that was already available.

This last bit of ‘logic’ is quite pathetic. A 20/20 hindsight review claims none of the 9-11 highjackers would be allowed in the US becuase their fake claims weren’t good enough? This is how weak the liberals are on protecting Americans. After getting every aspect of the TSA down these clowns say that, until the terrorists concoct better alibis when coming into the country, we have nothing to worry about. Yeah? I worry about idiots like this pretending a VISA application is all we need to protect ourselves.