Browsing the blog archivesfor the day Wednesday, December 28th, 2005.

When Film Reviews Bite

entertainment and popular culture

Like most people I’m a sucker for “best of” and “worst of” lists. But on my personal “worst” list are reviewers whose “Best Films of the Year” lists are made up of bleeping indy and foreign films I’ve never heard of, much less seen. Here’s one example, but this year we’ve had a bumper crop of them, seems to me.

I’m also seeing films on the “best” lists that got so-so reviews when they were released, like The Skeleton Key. Annoying.

I’d have a hard time coming up with a “Best Films of 2005,” because I’d have to list every new film I saw in theaters in 2005. But I didn’t see any films I didn’t like, so they can all go on the list —

    1. Good Night and Good Luck — the best.
    2. Batman Begins — dark and gritty, like a superhero movie should be
    3. A History of Violence — I hated the ending. I loved the ending.

[Update: I forgot Syriana! And it’s really good! Put it at number 4 and bump everything else down one. ]

    4. Madagascar — The New York City segments were priceless.
    5. Kingdom of Heaven — Would have been better if they hadn’t killed off Liam Neeson so fast, but still good.

[Update: I forgot Walk the Line. If Kingdom of Heaven is now #6, then Walk the Line is #7 and SW is #8

    6. Star Wars: Revenge of the SithAlmost redeemed the dreaded episodes I and II.
    7. The Legend of Zorro — I’m a sucker for swashbucklers.
    8. Harry Potter and the Goblet of Fire — entertaining, even though I already knew how it ended
    9. King Kong — ditto. Some scenes went a little long, though.
    10. Hitchhiker’s Guide to the Galaxy — The book was better, but the film was still pretty good.

In addition to these I saw Aliens of the Deep in 3D, which was nice. I also saw Constantine on TV. Have forgotten it already.

There are no doubt lots of really good films I didn’t see, which is why they are not on this list. But at least these are all red blooded, all-American major theatrical releases, by gawd. None o’ that smartypants indy or foreign stuff!

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Probable Cause

Bush Administration, Civil Rights, criminal justice, War on Terror

In the aftermath of September 11 —

Surveillance applications poured in. A flood of new FBI agents, not trained in FISA law, added another complication. It was critical that the government satisfy the FISA law’s “probable cause” requirement that the target was a foreign agent.

“You’d have an FBI agent screaming, ‘I need this warrant and I need it now,'” Lesemann recalled recently. “He’s screaming, ‘People will die unless you go to court.’ Or an agent would say, ‘This is a bad person, we need to move on this,’ and I’d say, ‘Yes, this is a bad person, but there’s no ‘foreign power’ here.'”

The snip above was taken from an article in the New Jersey Star-Ledger on August 21, “Changes in the law put spotlight on a shadowy court,” by Mary Jo Patterson. Dana Lesemann, quoted in the article, was a Department of Justice lawyer with top-secret national security clearance. She had been with the DoJ since 2000. “Her job involved collaborating with intelligence agents to prepare applications for the FISA court — and making sure the government justified the intrusive surveillance,” Patterson wrote.

This article was written before Wiretapgate became public, but it reveals that the FBI and Bush Administration were frustrated by the “foreign service” requirement. As we learned a couple of days ago, the FISA court has been challenging Bush Adinistration applications at an unprecedented rate, in spite of the fact that FISA standards were lowered by the Patriot Act. Patterson wrote,

In time, the [FISA]court came to be seen as the enforcer of “the wall,” a collection of laws and administrative policies that sought to keep national-security surveillance separate from domestic law enforcement.

FISA required that foreign-intelligence gathering be “the” purpose of any surveillance. Unlike conventional wiretaps, FISA surveillance did not require federal agents to show probable cause to believe a crime had been, or would be, committed. FISA required only that the government certify it had probable cause to believe that targets were agents of a foreign power.

The Patriot Act lowered the standard for a FISA warrant. Rather than stipulating that foreign-intelligence gathering be “the” purpose of surveillance, Section 218 of the act required that gathering such intelligence be “a significant” purpose.

Former Attorney General John Ashcroft interpreted that provision to mean law enforcement officers, not just intelligence agents, could initiate and manage FISA investigations. As a result, “the wall” virtually disappeared.

But it didn’t disappear enough to satisfy the FBI and the Bush Administration, apparently. As the opening quote indicates, many were frustrated by the “foreign intelligence” requirement.

Today Armando at Kos quotes testimony by then-Attorney General John Ashcroft to the Senate Judiciary Committee in June 2004. It’s clear the FBI was, literally, all thumbs when it came to FISA requests. Bottlenecks developed, but the bottlenecks were in the FBI, not the court. One suspects the “flood of new FBI agents, not trained in FISA law” that Patterson wrote about was a big part of that problem. And the clueless wonder, Ashcroft, was slow to fix the problem. I would think FBI Director Robert S. Mueller bears some responsibility also.

But problems between the FISA court and the FBI did not begin with the Bush Administration. During the tenure of Director Louis Freeh, for example, according to Patterson:

It was not that the court was opposed to intelligence agents’ passing information along to criminal prosecutors. It just wanted to manage and be part of the information flow.

This uneasy relationship between the FBI and the court would later be blamed for the FBI’s reluctance to work up a FISA surveillance warrant application for Zacarias Moussaoui, the so-called 20th hijacker, during the runup to 9/11.

FBI field agents arrested Moussaoui on Aug. 15, 2001, in Minnesota, where he was enrolled in a flight school. Although the agents suspected he was a terrorist, he was detained on an immigration violation.

The agents desperately wanted a FISA warrant to search his laptop. FBI headquarters, however, was not satisfied that Moussaoui was an agent of a foreign power and threw up “roadblocks,” according to a 2002 letter to FBI director Robert Mueller from Coleen Rowley, chief counsel in the FBI’s Minneapolis office.

After the attacks of Sept. 11, the government got its search warrant; Moussaoui was arrested and prosecuted. In April of this year he was convicted of participating in the 9/11 conspiracy.

Although this episode is sometimes held up by righties as an example of the “cumbersome” nature of working with the FISA court, the problem was actually within the FBI bureaucracy, not with FISA. And, as I said above, the Patriot Act made the standards for obtaining a warrant even lower. According to Patterson, in 2002 the FISA court rejected Ashcroft’s contention that Section 218 of the Patriot Act granted criminal investigators wide access to intelligence material and the authority to run FISA investigations. However,

Ashcroft appealed the decision to the Foreign Intelligence Surveillance Court of Review. This court, made up of three additional federal judges, had existed since the beginning of FISA, but had never been convened before.

In its first-ever ruling, the review court reversed the FISA court.

Ashcroft’s procedures remained in place.

Yet, in spite of this unprecedented laxity, the Bush Administration has had applications bounced, and Bush decided FISA was too much bother. Who needs oversight when you talk to God? But considering that the “foreign” part of “foreign intelligence” was a big hangup, one wonders how careful the Bushies have been to separate “foreign” from “domestic.”

Well, actually, I don’t wonder. I just don’t have proof.

That the White House uses the NSA as its own personal toy is a given — we know they used the NSA to snoop on UN delegates and Mohamed ElBaradei of the IAEA, for example. And we have learned that the NSA has been tracing large volumes of phone and Internet traffic in the United States. Do we think for a moment that the Bushies have any scruples whatsoever regarding “domestic” snooping? And for non-security-related purposes? Puh-leeze …

In other wiretap news, today we learn from Lichtblau and Risen at the New York Times that “Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.” We don’t know if any of them were subject to illegal wiretaps, and I suspect if they were the Bushies will find ingenious ways to stonewall investigations. For more commentary, see “Meet the Fan” by ReddHedd at firedoglake.

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