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.
Maha, I linked you on this on what was originally a post on Bill Keller, the NY Times managing editor who has managed to be a traitor to those on the right and a tool of Bush to those on the left. Seems we all certainly bring our opinions to the “facts.” More on this at Sympathy for the Devil
it’s the terrorists fault bush had to break the law,, no wait,it’s the American peoples fault cause damn it bush just can’t trust a bunch of liberals so we MADE him spy on us,, no no wait, it’s congress’s fault they approved all this right?, maybe it is the fault of the bush legal team, who told him this was legal, those bastards, they are just trying to get bush into trouble..Or maybe it’s those God damn liberals who made him break the law, they just HAD to run against poor bush in a election(how anti American) so really what choice did they leave poor george but to spy?OK, it’s the constitutions fault,,,after all it didn’t say bush can’t break the law, and even if it does say the president is suppose to uphold the laws,, they didn’t put bush’s name in there specifically,, so it is all the founding fathers fault, plus those stupid ass founding fathers never mentioned a terrorist with a cell phone so THAT changes EVERYTHING… Damn it don’t you people see?
Maybe it is the American peoples fault,,yes , lets blame them!They should have known, and if they were not smart enough to know king bush was going to do this, well it just serves them right!,, well ok maybe it is FISA’S fault,,those assholes questioned the president!!!how dare they?They should be tried for treason for trying to stop the great leader from trying to save us all, theirs is NOT to question, but to rubber stamp because the president fucking says so!They made him break the law, if he wouldn’t have the terrorists would have gotten us all by now,,everyone!BOO!And FISA wanting requests to be in order before they granted them??pffffff,,see what choice did poor innocent bush have? It’s those damn activist judges!pull little georgie into your bosom,, for God sake , the whole world is out to get him,, they are! I bet this is a liberal set up folks!Even the FBI is in on it,making poor george look bad ,, shame!
Look here folks , this is a new world.Your either with the president or your against him,,and if you are against him he HAS to spy on you,, your a terrorist!And the constitution? That quaint out dated document? Your going to let the terrorists get you if you insist on trying to tell bush what it says,,after all he is a MUCH better reader then you are, so don’t bother trying to figure it all out, just trust bush, has he ever been wrong before?He knows he has the right to spy on you without FISA approval , it is in the AUMF document and the Constituition, you didn’t see it? If bush says it is there, it is.Clearly it is just the rest of the world who is wrong, which is why none of this is bush’s fault
Anyone can see what needs to happen here.Bush needs to be given a medal of freedom,then he needs to be given the freedom to do his job, so we need to fix it so no president ever has to abide by any laws ever again,, for our protection.We will ammend the constitution and remove the 4th ammendment, other wise we can never really be safe.FISA judges will be tried and made an example of so no judge dare question a president ever again.
A new far reaching spy agency should be formed one that can hear when you pee..you should have nothing to hide if you are doing nothing wrong , right? YOU the American , cannot be trusted, surely you understand that.Bush should have veto power over any court ruling , so long as the judges are not doing anything bush doesn’t approve of they have nothing to fear.And i suggest to help bush stop the new broad reaching definition of a terrorist that there be criminal laws that convict anyone who will not comply with the presidents wishes.That would go for congress too, because we cannot have them in the way of the president doing their job.Maybe even a law that at war time congress has to just go home, as any oversight on their part is , infact , unconstitutional, because it stands in bush’s way in fighting the war on terror.Alberto Gonzales said that they did not go to congress to ask the fisa laws be changed because they knew it would not pass..therefore congress is unconstitutional.They are aiding the terrorists..perhaps they too need to be told this is a new world.
This is what I have heard from the right this week via tv, blogs, radio and political chat rooms.This and more,, as bush would say” a lota chatter, a lota noise” and it seems to me this has been presented as an issue we can debate ,, but there is no debate.This is a constitutional crisis unlike any before it and if we allow it to be made into a issue that is open for debate, our fourth ammendment rights are gone ….GONE…i feel like this is being swept under the rug by folks to busy saving christmas, while the constitution dies. What right will be next?…I feel like i am in a huge room with everyone in the country, and the room is on fire,, I keep telling everyone but no one seems to hear me(except of course the NSA) what are we going to do?
If terrorism requires ‘quick draw ‘response then why did 9/11 get my pet goat response and why did katrina get what is that water? response? Only terror that enhances the little dick-tater’s power needs quick draw magraw response.
It all really fits Bush’s pattern of firing the people who knew how to take care of business andhiring ideological pals who don’t have a clue how to do the jobs they were hired for then blaming somebody else.
Wow, justme, your comment was so right on, funny and intelligent. Thanks for a great read.
Just Me needs a blog. Sweeeeeeet.
Sorry about the rant maha,, thanks for this blog,and for allowing people like me to comment..Your blog is the greatest and my first stop everyday.I hope you are recognized for your outstanding work ..please don’t ever stop!
The head of NSA (Gen Hayden) stated insistently that the standard for warrantless search was “reasonable belief” NOT “probable cause”. Even after repeated questioning by a reporter, he stuck to his guns.
The head of NSA has not read the 4th Amendment? Oh my God.
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