Dec 23 2005

FISA Court Tried To Retain Gorelick Wall

Published by at 12:41 pm under All General Discussions,FISA-NSA

SBD, a reader here and on other conservative sights, keeps posting comments that appear a lot like bread crumbs to follow. Fortunately I find his crumbs hard to resist. The latest was on this story by James Risen just after 9-11 regarding wire taps, FISA and terrorists.

The internal debate at the Justice Department and F.B.I. over wiretap surveillance of terrorist groups ignited in March, prompted by questions raised by Royce C. Lamberth, the chief judge of the Foreign Intelligence Surveillance Court, a little-known panel that decides whether to approve Justice Department applications to permit wiretaps and clandestine searches in espionage and international terror cases.

In a letter to Attorney General Ashcroft, Judge Lamberth raised questions about a wiretap request related to a Hamas member, officials said. Under the Foreign Intelligence Surveillance Act, the F.B.I. must make applications, through the Justice Department, to the surveillance court to authorize wiretaps and clandestine searches of the homes and offices of suspected terrorists and spies.

Judge Lamberth’s concerns about F.B.I. applications to the court are apparently related to whether the bureau was seeking wiretaps under the act on individuals without informing the court of a subject’s status pending criminal investigations.

The Bush administration team at the Justice Department reacted to Judge Lamberth’s complaints by opening an inquiry into Michael Resnick, an F.B.I. official who coordinates the act’s applications.

Disclosure of the internal investigation of the foreign intelligence process comes just as Mr. Ashcroft is seeking Congressional support for an emergency package of anti-terrorism legislation, including an expansion of the Justice Department’s ability to use wiretaps in cases of suspected terrorism or espionage.

Under his proposal, law enforcement agents would have broad authority to conduct roving electronic surveillance of suspected terrorists as they move from phone to phone or from computer terminal to computer terminal.

That was September 18, 2001. Fast forward to August 23rd, 2002 to find the resolution of this inquiry:

The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.

A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance Act (FISA) alleges that Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

Authorities also improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions, the judges said.

The department discovered the misrepresentations and reported them to the FISA court beginning in 2000.

The dispute between the Justice Department and the FISA court, which has raged behind closed doors until yesterday, strikes at the heart of Ashcroft’s attempts since Sept. 11 to allow investigators in terrorism and espionage to share more information with criminal investigators.

Generally, the Justice Department must seek the FISA court’s permission to give prosecutors of criminal cases any information gathered by the FBI in an intelligence investigation. Ashcroft had proposed that criminal-case prosecutors be given routine access to such intelligence information, and that they be allowed to direct intelligence investigations as well as criminal investigations.

This is the now infamous Gorelick Wall which would not come out in public until the 9-11 Commission, which came later.

The ruling, signed by the court’s previous chief, U.S. District Judge Royce C. Lamberth, was released by the new presiding judge, U.S. District Judge Colleen Kollar-Kotelly.

FBI and Justice Department officials have said that the fear of being rejected by the FISA court, complicated by disputes such as those revealed yesterday, has at times caused both FBI and Justice officials to take a cautious approach to intelligence warrants.

The opinion itself — and the court’s unprecedented decision to release it — suggest that relations between the court and officials at the Justice Department and the FBI have frayed badly.

FISA applications are voluminous documents, containing boilerplate language as well as details specific to each circumstance.

Hmm. Seems the FISA court is not the streamlined, team player democrats and the media have led us to believe. In looking back, it appears the FISA court helped misdirect efforts at a critical time running up to 9-11. Their egotistical anger at inaccuracies in filings (repeated since the filings are resubmitted every 45 days) resulted in a petty investigation that had the effect of inhibiting the use of the critical FISA process:

In addition, recent interviews of intelligence officials by The New York Times suggest that the bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information. The F.B.I., the officials said, had become wary after a well-regarded supervisor was disciplined because the court complained that he had submitted improper information on applications.

The bureau’s reluctance to press new applications for national security search warrants stemmed, some officials believe, from an incident late in the Clinton administration.

In the fall of 2000, the seven judges on the secret Foreign Intelligence Surveillance Court in Washington summoned Attorney General Janet Reno to their secure courtroom. The judges, in a letter signed by Chief Judge Royce C. Lamberth, had complained to her of a serious breach. Misleading affidavits had been submitted to the court, which approves warrants to eavesdrop on people suspected of being foreign agents or international terrorists. At the meeting, Ms. Reno agreed that the problem was serious, the officials said.

All of the flawed affidavits had been submitted by Michael Resnick, the F.B.I. supervisor in charge of coordinating the surveillance operations related to Hamas, the militant Palestinian group. The judges said they would no longer accept applications from Mr. Resnick.

In response, the F.B.I. director at the time, Louis J. Freeh, ordered a broader review of the eavesdropping applications — including those related to Al Qaeda. That review, the officials said, turned up disturbing signs that Al Qaeda applications were also flawed.

For Mr. Resnick, who had been a rising star in the bureau, the complaint from the judges and especially their refusal to have him appear before them again was a blow to his career that angered some of his colleagues. Ms. Reno turned over the complaint to the department’s Office of Professional Responsibility, which is still investigating Mr. Resnick.

Intelligence officials said the event resulted in making the bureau far less aggressive in seeking information on terrorists. Other officials said the Resnick case prompted bureau officials to adopt a play-it-safe approach that meant submitting fewer applications and declining to submit any that could be questioned.

Hmm again. Reno incompetence results in rebuke, which results in an over reaction, which results in a Federal system working well below par. Seems to me FISA has was a integral stumbling block to intelligence gather pre and post 9-11.

Possibly more later.


OK a bit more now. Here is the process in the words of Judge Lamberth himself:

Applications for electronic surveillances and physical searches are presented to individual judges of the court who conduct virtually all the hearings at a special secured courtroom in Washington. Currently, one judge comes to Washington each week for two days for a regular sitting of the court. Emergency motions have, or may be, presented to the presiding judge or another available judge between regular sittings. Every application is a formal written application, sometimes 40-50 pages in length, with great detail showing the evidence and what reason there may be to suspect the person. Each application is supported by an affidavit of the investigative agent who is responsible for the surveillance, and who personally appears before the judge to respond to any questions, along with the Justice Department lawyer from the Attorney General’s Office of Intelligence Policy and Review. Each application also is accompanied by a certificate signed by the head of the investigative agency involved who certifies the need for the surveillance, and by approval by the Attorney General or Deputy Attorney General that all statutory requirements for the surveillance have been met. They can’t present it to the court until it has been signed by the Attorney General or Deputy Attorney General.

For the government, this is considered stream lined. Look at all the people who need to get together for each request. One other item to note is the emphasis Lamberth places in civil rights:

All of the proceedings are ex parte so we do understand that the judges of the court have a special duty to protect the rights of absent parties, to ensure that there is a proper basis for the surveillance sought. The judge carefully explores all the constitutional and statutory questions presented by what is being sought—always mindful of this special duty to absent parties. The court views the personal accountability of the Attorney General and the head of the investigative agency for each request made to the court as a way to ensure that everything we see is well scrubbed before it is presented to the court.

I believe that the variety of judges who have now served on this court—Democrats and Republicans, conservatives and liberals, from east and west and north and south—has been a real strength of this court in demonstrating that when we approve a surveillance request there really is a valid national security basis for this surveillance. And that it is not being done for some improper political motive. What we add to the process is some assurance to the public that there is a valid national security reason for the surveillance.

I agree it is important to balance the rights of the person(s) who can be caught up in surveillance. But if one end of the conversation is with a known terrorist, the civil liberties of the US contact take second place to safety of Americans. The surveillance itself will establish whether the US contact is innocent or part of a terrorist plot. I would say the FISA court is not all the NY Times led us to believe. Lamberth, a conservatice judge no doubt, has legal blindes on:

We 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.

That is not the right order in all cases. You could lose civil liberties on any surveillance. What is not in the equation is th risk of attack. Where do we weigh whether we will have thousands of dead Americans with their civil liberties still, uselessly now, intact?


Stick a fork in the media and the left – they are done.

Communications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearlv und unnzistakuhlj authorizes such activities directed against the communications of our enemy. Accordingly, the President’s “authority is at its maximum.”

7 responses so far

7 Responses to “FISA Court Tried To Retain Gorelick Wall”

  1. sbd says:

    From 9/11 Commission Report, 2004

    In July 1995, Attorney General Reno issued formal procedures aimed at managing information sharing between Justice Department prosecutors and the FBI. They were developed in a working group led by the Justice Department’s Executive Office of National Security, overseen by Deputy Attorney General Jamie Gorelick. These procedures – while requiring the sharing of intelligence information with prosecutors – regulated the manner in which such information could be shared from the intelligence side of the house to the criminal side.

    These procedures were almost immediately misunderstood and misapplied. As a result, there was far less information sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the department’s procedures. Over time the procedures came to be referred to as “the wall. ” The term “the wall” is misleading, however, because several factors led to a series of barriers to information sharing that developed.

    The Office of Intelligence Policy and Review became the sole gatekeeper for passing information to the Criminal Division. Though Attorney General Reno’s procedures did not include such a provision, the Office assumed the role anyway, arguing that its position reflected the concerns of Judge Royce Lamberth, then chief judge of the Foreign Intelligence Surveillance Court. The Office threatened that if it could not regulate the flow of information to criminal prosecutors, it would no longer present the FBI’s warrant requests to the FISA Court. The information flow withered.


  2. sbd says:

    I never thought the words “Thank you Jimmy Carter” would come out of my mouth, but it just did!!

    U.S. OFFICIALS DEFINE POLICY ON SEARCHES The New York Times November 9, 1980, Sunday, Late City Final Edition

    November 9, 1980, Sunday, Late City Final Edition

    SECTION: Section 1; Part 1; Page 35, Column 6; National Desk

    LENGTH: 1009 words


    BYLINE: By ROBERT PEAR, Special to the New York Times


    Justice Department lawyers say that the President still has the ”inherent authority” to order searches without warrants to collect foreign intelligence within the United States, despite the criminal conviction this week of two former officials of the Federal Bureau of Investigation who said they had approved such searches in 1972 and 1973.

    Kenneth C. Bass 3d, chief of the department’s Office of Intelligence Policy and Review, recently advised the Director of the bureau that ”the President has inherent authority to authorize warrantless foreign intelligence searches” in cases involving spies or other agents of a foreign power. Mr. Bass added that ”as a general rule” intelligence officials would seek advance approval for such searches from a new court that conducts all its business in secret.

    Mr. Bass’s comments, the most authoritative statement of the Government’s position on a sensitive constitutional issue, were contained in a memorandum that he sent on Oct. 14 to William H. Webster, Director of the bureau. A copy of the memorandum was admitted as evidence at the trial of W. Mark Felt and Edward S. Miller, the former F.B.I. officials convicted Thursday of conspiring to violate the constitutional rights of American citizens.

    Testimony in the seven-and-a-half-week trial showed that Mr. Felt and Mr. Miller had authorized a series of break-ins in an effort to find fugitive members of the radical Weather Underground organization. The group took responsibility for numerous bombings of public buildings in the early 1970’s, including the United States Capitol, the Pentagon and the State Department.

    ‘Concurrent Jurisdiction’

    Mr. Bass said in an interview yesterday that ”the Government has never conceded that the President lacks constitutional authority to authorize surreptitious entries in foreign intelligence cases where there is an agent of a foreign power involved.”

    He added that Federal judges had ”concurrent jurisdiction” with the President to approve physical searches for intelligence purposes. Accordingly, he said, ”the Attorney General has determined that the Government will, as a general rule, seek prior judicial authorization for intelligence seaches,” except where such a procedure would ”frustrate the executive’s duty to protect the national security.”

    Requests for intelligence search warrants will be filed with the Foreign Intelligence Surveillance Court, a special seven-judge court created by Congress in 1978 to review requests for wiretaps and other types of electronic surveillance. Mr. Bass said that Congress had not given the tribunal explicit statutory authority to approve physical searches, but he added that members of the court, as Federal judges, had ”inherent powers” to review and approve intelligence searches that affect constitutional rights.

    The searches authorized by Mr. Felt and Mr. Miller affected the rights of friends and relatives of the Weather Underground fugitives. Defense attorneys said that search warrants were not required because the ”black bag jobs” were part of a foreign intelligence investigation of possible links between the radicals and hostile foreign countries.

    1978 Executive Order Cited

    An executive order issued by President Carter in January 1978 established the standard that governs the use of searches for intelligence purposes today. Such searches, it said, ”shall not be undertaken against a United States person without a judicial warrant, unless the President has authorized the type of activity involved and the Attorney General has both approved the particular activity and determined that there is probable cause to believe that the United States person is an agent of a foreign power.”

    A ”United States person” is a citizen or a permanent resident alien. The searches authorized by Mr. Felt and Mr. Miller would probably not meet the current standard because, according to evidence at the trial, they were not specifically approved by the Attorney General or the President, and the occupants of the apartments searched were not suspected of being foreign agents.

    The creation of Mr. Bass’s office by former Attorney General Griffin B. Bell last year illustrates the Carter Administration’s efforts to impose the rule of law on intelligence operations. Attorneys for Mr. Felt and Mr. Miller said that their clients had no clear guidance on the requirements of the law pertaining to search and seizure in 1972 and 1973.

    Odell O. Valentine, the foreman of the jury that convicted Mr. Felt and Mr. Miller, said that the verdict was ”based on the Fourth Amendment, the privacy of your home.”

    No ‘Foreign Connections’ Found

    ”We looked through all the evidence,” he said, ”and couldn’t find any evidence showing that the break-ins had foreign intelligence” objectives or proving that the victims had ”foreign connections.”

    Another juror, Amelia C. Mebane, said: ”We tried very, very hard to reach some other kind of conclusion, to find some excuse for going into those homes, some part of the law that we could apply favorably to these men, but we couldn’t. We really tried to make it a national security case, but we just couldn’t.”

    Mrs. Mebane, a 52-year-old Federal employee, also said that ”we needed documents” showing that Mr. Felt and Mr. Miller ”went to the President and that the President gave them the O.K. to go into those homes, but we didn’t find that and Nixon didn’t say it.”

    Like several other jurors, Mrs. Mebane said that she had given no special weight to the testimony of former President Richard M. Nixon. ”I don’t know that we reacted to him any different than we did to any other witness,” she added.


  3. nar9350 says:

    Great post!

    This is exactly what I was trying to convey in my comment in the earlier comment thread:



    There’s a lengthly discussion on this topic over at Winds of Change:


    The Traditional Law Enforcement/Criminal Justice System Paradigm Is Ill Prepared to Fight this War On Terror –

    What Should Our Domestic Rules of Engagement be?


    HT Armed Liberal – Winds of Change

    A.L. was nice enough to link to my paper in a separate post at WoC:


  4. nar9350 says:

    FISA Court – “Speedy” as Molasses!

    [Just posted this to some friends with a HT here]

    This is a must read about the “speedy” process of the FISA Court. Speedy is damn right – like molassis on a cold winter’s day!

    In the federal frame of reference I guess this is swift flowing river.

    Unfortunately the enemy’s decision making cycle is probably well over 1 ghz faster.


  5. sbd says:

    The most comprehensive list of documents regarding FISA .

    The Federation of American Scientists


  6. sbd says:

    I don’t know why the link did not work before, let’s try again.
    The Federation of American Scientists


  7. […] The presiding judge for the FISA power grab was Royce C. Lamberth, with concurrence from the remaining seven judges. Honorable William H. Stafford, Jr. Judge, United States Foreign Intelligence Surveillance Court […]