Dec 27 2005

More On The FISA War

Published by at 10:16 am under All General Discussions,FISA-NSA

Updates at the end

The left is all up in their paranoid poses pretending somehow every American is at risk for monitoring because an Al Qaeda terrorist might come calling and expose their entire life for all to see. Just because they are paranoid doesn’t mean someone is not out to get them.

But while the left plays lose with facts and logic (an impressive trick to be sure), the rest of us prefer to debate issues from a field of facts, clear definitions, and a modicum of seriousness. So for those of us who want to know more, and who believe the danger lies in not monitoring the communications of the people who declared war on us, there is a good article out today on the terminology of surveillance.

Ever since The New York Times broke the story that President Bush had directed the National Security Agency to bypass the Foreign Intelligence Surveillance Act for certain domestic monitoring duties, commentators and members of Congress have been batting the word “wiretap” around in a way that fundamentally muddies the waters.

If we’re going to rationally debate FISA limits, we need to clarify the distinction between law enforcement wiretapping and broadband signals intelligence.

A wiretap is a specific monitoring program placed on a circuit-switched line of an individual person, or on a trunk group that may be part of a central office’s domain of interest. It must be sought by state, local or federal officials through traditional wiretap requests. When national security interests involve the FBI, such requests typically must pass through the FISA Court, the special “star-chamber” surveillance court created in 1978.

Emphasis mine, One must recall the left’s current support of FISA is simply political opportunism, with a dose of delusional conspiracy theory thrown in for fun. But back to the terminology discussion.

The NSA does not wiretap. The global electronic network it manages, nicknamed Echelon, comprises satellites, high-frequency direction-finding antennas and microwave interception dishes, located in orbit and in critical locations on the ground, in the sea and in the air. The network operates continuously, in real-time, collecting everything it can, but analyzing very little of what it collects.

When pundits talk of NSA domestic “collection,” some may picture a magical force field surrounding this country, where all interception equipment is automatically shut down inside the borders. Not so. Domestic “broadband test” bases regularly scoop up communications as part of Echelon. The difference in the post-FISA era is that such information must never be stored, shared with law enforcement or used in other ways. By all accounts, the NSA has tried to abide by that.

That is when the NSA is not pointing their mind control beams at the liberal left, making them believe in all their wild conspiracy theories. But I digress. Here is what Bush has done differently from the past

President Bush, then, asked the agency to keep and analyze specific domestic-to-international communications that already could be collected — no new bases, no new “wiretaps.” While the always-on nature of Echelon could inspire some paranoia, concern can be tempered by understanding that the agency has had neither the storage capacity nor the human-analysis staff to examine more than a tiny percentage of the take.

The monitoring is on known Al Qaeda terrorists, outside the US, who have taken a vow to kill Americans. Who they are in contact with is fair game. And make no mistake about it. Liberal loons like Judge James Robertson are not worried about process. They are worried about stopping our efforts to catch the next 9-11 wannabes.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

Emphasis mine. Robertson and his echo chamber are not comfortable with FISA confirming the monitoring of terrorist communications in the US through FISA. In fact they resisted it. What is supposed to happen is a transition from NSA’s international monitoring to the FBI for domestic response (and prevention) to a potential attack. What FISA was doing was saying they were ‘too pure’ to have intelligence provide them a lead to a terrorist compatriot here in the US. Too pure. Got that? They did not want to ‘taint’ their work….

We would have to ignore the terrorists in our midst because ideologues like Robertson felt dirty spying on sworn enemies hell bent to kill us.

As I pointed out in a previous post, the acid test for any process is whether it would have, without a doubt, snared Hamdi and Midhar – the two 9-11 pilots who were in the US and in contact with their counterparts overseas. If the current process allows a repeat of that mistake, then the current process is no good. The left wants the current process to remain broken – even though we were supposed to have fixed it.

And anyone who has been through a sobriety checkpoint knows there is not a magic, constitutional shield against being searched or questioned.

But the critics are acting like the mere suggestion of a search without a warrant is tantamount to setting up a police state. They don’t tell you the Fourth Amendment itself primarily guards against unreasonable searches and seizures. Courts have always recognized exceptions to the warrant requirement.

That warrants are not absolutely indispensable is also clearly indicated by the very terms of the Foreign Intelligence Surveillance Act, which expressly dispenses with the warrant requirement in certain defined circumstances. Some scholars maintain those exceptions apply to the president’s National Security Agency surveillance of al Qaeda, though the administration doesn’t seem to rely on that position. Instead, Mr. Bush finds his authority in the Constitution and in Congress’ de facto declaration of war following September 11, 2001.

He is not challenging the validity of FISA but merely saying it does not limit his inherent constitutional authority as commander in chief under Article II to conduct such searches, when necessary, to protect national security. Congressional action, in other words, never trumps the Constitution.

If we allow warrantless searches to try and catch drunk drivers using our highways, why is it the left is calling for impeachment because we have warrantless searches of the information flowing through our communications highways? Why is the left trying to stop, again, the process of moving intelligence information on known terrorists to the FBI through the FISA process they pretend to hold so dear?

I have added a new category cover all my FISA-NSA related posts.


I find it helpful to occasionally look at the alternative to confirm that the grass is greenest right were we are. Bush is judiciously using his powers to detect threats (NSA, CIA), identify their US component (NSA, FBI, FISA) and then stop their plans (FBI, Law Enforcement, Courts). The left, when not in the grip of the evil NSA’s mind control ray, are wishing for another round of impeachment:

Bush and company have very wrongly used the commander-in-chief power as a lever to make the President far, far too powerful, powerful far beyond anything intended by the framers, who created a government in which the legislature was to be the more powerful branch.

Someone wasn’t paying attention in high school US government class it seems.

Congress has been ineffective and cowardly.

Bush has committed the impeachable felony of conspiracy to commit torture, but the media and the politicians refuse to discuss this. He should, however, be impeached for this felony.

Abu Grhaib redux.

In accordance with first amendment values, there should be reporters’ privilege when confidential sources alert them to evildoing by government, but not when confidential sources try to use reporters to further evildoing by government.

Translation: The media should be pawns of the left. How Goebbels of them!

Bush’s claims of power all come down to a single overarching principle, articulated for him in legal terms by John Yoo, and articulated in political speech by Bush himself. That overarching principle is that the President is all powerful whenever he asserts a claim that what he authorizes or does is for the purpose of fighting a war.

Well, ….yes. But it doesn’t hurt when that claim is backed up by a resounding declaration of war from the cowardly US Congress.

John Yoo said that such all-surpassing power comes from the commander-in-chief clause and cannot be limited by Congress. Of course, Yoo shamelessly distorts the commander-in-chief power, which was intended simply to put a civilian in charge of the military lest a general seek to take over the country and become dictator, and was not intended to make the President a dictator, was not intended to give him the dictatorial power that the framers were guarding against in a general.

Bush would be a dictator if he attempted to stay in office without the vote of the people. Until then he is the leader and has powers bestowed upon him. What seems to frighten this poor soul is the fact we have a leader. The guy goes on to rant we cannot take our leaders seriously if we are intellectuals, and then demonstrates what he means by intellectuals:

For we are faced with an Executive, whose charge is led by the dumb Bush and the truly evil Cheney, that says it can do whatever it wants in the name of allegedly safeguarding America, and that whatever it does for this claimed purpose is therefore ipso facto legal regardless of whether it is in violation of statutory law, in violation of longstanding custom and precedent, or in violation of any reasonable conception of humanity.

Is this the kind of fool we want to be handing our national protection over to?

Count me out. BTW, if you think this is the ranting of some immature, anti-globalization demonstrator you are mistaken. This rant filled, incoherent piece is brought to you by a ‘fine legal mind’!

Lawrence R. Velvel is the Dean of Massachusetts School of Law.


From the insane of the left back to reasoned, mature discussion. Human Events takes on the subject here, with some sage advise to all interested and concerned about this issue:

Pundits and politicians are already passing judgment on the President’s actions. Many of their comments are irresponsible and inappropriate. Not enough is known by those who are commenting publicly to justify their factual conclusions, and several of their legal conclusions are demonstrably false.

Of course, that is fairly typical when something in our national security arsenal is leaked to the press and our enemies. Enemies try to not only adjust their actions to thwart our efforts. They would dearly love to see the efforts disbanded in a fit of political correctness run amok.

The article does establish some good grounds from which to discuss the issue

The president has broad constitutional and statutory powers to protect Americans in a time of war. No evidence has been presented that the NSA did anything illegal. To the contrary, the president has clear legal authority to engage in intelligence interceptions abroad without court approval. Because the program under which these interceptions were made is highly classified, only a classified review by the appropriate congressional committees—a review with appropriate safeguards for national security and the full disclosure of all relevant documents and briefings by the Administration—will provide the necessary checks and balances envisioned in the Constitution.

As we pointed out above, the issue arise when this information then needs to go to law enforcement such as the FBI, and needs to be brought into the FISA process. A step being fought by the likes of Judge James Robertson. And in their efforts to wrest legal authority from our elected leadership, the Robertson echo chamber were the ones who broke the law:

Leaking the existence of the NSA program to the news media was wrong on many levels. Previous disclosures of this type have allowed al Qaeda to change its methods of communication and have damaged U.S. national security. If government employees suspect that government action is improper, there are appropriate ways to raise the issue—through the normal chain of command, through agency general counsel, and through confidential communications to the relevant inspectors general—that do not endanger national security. Moreover, there are whistleblower laws to protect people who have the courage of their convictions and expose suspected wrongdoing.

Anonymous leaks to the news media, however, damage U.S. counterterrorism efforts, alert our wartime enemies of our methods of intelligence gathering, and put ongoing investigations at risk. To defend such leaks as furthering the separation of powers is even more preposterous. The leakers knew that congressional leaders had been briefed many times on the program and that members of Congress’s intelligence committees were conducting oversight. (At least one early oversight letter was also leaked.) Apparently, the leakers were dissatisfied with the job Congress was doing or had some other motive for going public. Leaking classified material to the press threatens national security. It is a crime and should be punished.



Drudge has this article at the top of his page today. It is basically the same story we posted on here yesterday after midnight.


Some wise words regarding the unconcious or reckless Liberal Death Wish for America:

This NYT article has also warned the terrorists who have kept in touch by telephone with their sleeper cell agents in America, that they are being overheard. They must now switch to a safer way of telling their agents when to set off bombs in our subways, buildings or other public places. Our ability to know about a terror act in advance so that we may help save the life of someone in your family has been denied.

If an agent of the FBI, CIA or NSA happens to learn that Zarqawi or one of his commanders is trying to reach an American here in the USA, do you really want this agent unable to listen in on this conversation until he can find some judge somewhere who can grant a warrant, knowing that this delay could cause us to miss hearing the orders being transmitted to a sleeper cell here in the USA? Do you really think that it better to allow this “civil liberty” to an American traitor rather than do what is necessary to save hundreds of innocent lives of men, women and children?

And if your answer is “I don’t want an agent listening to my phone calls,” what makes you think that any agent would waste his or her time listening to your boring calls? The only people who should worry about their calls or library visits being monitored are terrorists intent on killing Americans!

The left is so sure we are all out to get them, maybe they do not care if we are casualties in the war against terrorists?

7 responses so far

7 Responses to “More On The FISA War”

  1. az redneck says:

    I think that you are wrong on the single change that Bush made to Echelon.He made many changes, as evidenced by the following link:

    Where were the leakers, media and FISA court then? I don’t understand why you, mac, et. al. aren’t including these in your comparisons. (other than the fact mac is sleeping in this morning!)

  2. az redneck says:

    Whoops! my bad. he slept in yesterday.

  3. AJStrata says:

    AZ Redneck,

    “I don’t understand why you, mac, et. al. aren’t including these in your comparisons.”

    Was not aware of them!

    Thanks for the tip – AJStrata

  4. sbd says:

    Note: This opinion is subject to formal revision before publication in the Federal Reporter.



    Argued September 9, 2002   Decided November 18, 2002

    In re: Sealed Case No. 02-001


    Consolidated with 02-002


    On Motions for Review of Orders of the United States
    Foreign Intelligence Surveillance Court
    (Nos. 02-662 and 02-968)


    Theodore B. Olson, Solicitor General, argued the cause for appellant the United States,
    with whom John Ashcroft, Attorney General, Larry D. Thompson, Deputy Attorney General,
    David S. Kris, Associate Deputy Attorney General, James A. Baker, Counsel for Intelligence
    Policy, and Jonathan L. Marcus, Attorney Advisor, were on the briefs.

    Ann Beeson, Jameel Jaffer, Steven R. Shapiro, for amicus curiae American Civil
    Liberties Union, with whom James X. Dempsey for Center for Democracy and Technology,
    Kate Martin for Center for National Security Studies, David L. Sobel for Electronic Privacy
    Information Center, and Lee Tien for Electronic Frontier Foundation, were on the brief.

    John D. Cline, Zachary A. Ives, and Joshua Dratel, for amicus curiae National
    Association of Criminal Defense Lawyers.

    Before: GUY, Senior Circuit Judge, Presiding; SILBERMAN and LEAVY, Senior Circuit

    Opinion for the Court filed Per Curiam.

    Per Curiam: This is the first appeal from the Foreign Intelligence Surveillance Court
    to the Court of Review since the passage of the Foreign Intelligence Surveillance Act (FISA),
    50 U.S.C. §§ 1801-1862 (West 1991 and Supp. 2002), in 1978. This appeal is brought by the
    United States from a FISA court surveillance order which imposed certain restrictions on the
    government. Since the government is the only party to FISA proceedings, we have accepted
    briefs filed by the American Civil Liberties Union (ACLU)1 and the National Association of
    Criminal Defense Lawyers (NACDL) as amici curiae.

    Not surprisingly this case raises important questions of statutory interpretation, and
    constitutionality. After a careful review of the briefs filed by the government and amici, we
    conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and
    that the restrictions imposed by the FISA court are not required by FISA or the Constitution.
    We therefore remand for further proceedings in accordance with this opinion.


    The court’s decision from which the government appeals imposed certain requirements
    and limitations accompanying an order authorizing electronic surveillance of an “agent of a
    foreign power” as defined in FISA. There is no disagreement between the government and the
    FISA court as to the propriety of the electronic surveillance; the court found that the
    government had shown probable cause to believe that the target is an agent of a foreign power
    and otherwise met the basic requirements of FISA. The government’s application for a
    surveillance order contains detailed information to support its contention that the target, who
    is a United States person, is aiding, abetting, or conspiring with others in international
    terrorism. [approx. 1 page deleted]3 The FISA
    court authorized the surveillance, but imposed certain restrictions, which the government
    contends are neither mandated nor authorized by FISA. Particularly, the court ordered that

    law enforcement officials shall not make recommendations to
    intelligence officials concerning the initiation, operation,
    continuation or expansion of FISA searches or surveillances.
    Additionally, the FBI and the Criminal Division [of the
    Department of Justice] shall ensure that law enforcement
    officials do not direct or control the use of the FISA procedures
    to enhance criminal prosecution, and that advice intended to
    preserve the option of a criminal prosecution does not
    inadvertently result in the Criminal Division’s directing or
    controlling the investigation using FISA searches and
    surveillances toward law enforcement objectives.

    To ensure the Justice Department followed these strictures the court also fashioned what the
    government refers to as a “chaperone requirement”; that a unit of the Justice Department, the
    Office of Intelligence Policy and Review (OIPR) (composed of 31 lawyers and 25 support
    staff), “be invited” to all meetings between the FBI and the Criminal Division involving
    consultations for the purpose of coordinating efforts “to investigate or protect against foreign
    attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence
    activities by foreign powers or their agents.” If representatives of OIPR are unable to attend
    such meetings, “OIPR shall be apprized of the substance of the meetings forthwith in writing
    so that the Court may be notified at the earliest opportunity.”

    These restrictions are not original to the order appealed.4 They are actually set forth
    in an opinion written by the former Presiding Judge of the FISA court on May 17 of this year.
    But since that opinion did not accompany an order conditioning an approval of an electronic
    surveillance application it was not appealed. It is, however, the basic decision before us and
    it is its rationale that the government challenges. The opinion was issued after an oral
    argument before all of the then-serving FISA district judges and clearly represents the views
    of all those judges.5

    We think it fair to say, however, that the May 17 opinion of the FISA court does not
    clearly set forth the basis for its decision. It appears to proceed from the assumption that FISA
    constructed a barrier between counterintelligence/intelligence officials and law enforcement
    officers in the Executive Branch–indeed, it uses the word “wall” popularized by certain
    commentators (and journalists) to describe that supposed barrier. Yet the opinion does not
    support that assumption with any relevant language from the statute.

    The “wall” emerges from the court’s implicit interpretation of FISA. The court
    apparently believes it can approve applications for electronic surveillance only if the
    government’s objective is not primarily directed toward criminal prosecution of the foreign
    agents for their foreign intelligence activity. But the court neither refers to any FISA language
    supporting that view, nor does it reference the Patriot Act amendments, which the government
    contends specifically altered FISA to make clear that an application could be obtained even if
    criminal prosecution is the primary counter mechanism.

    Instead the court relied for its imposition of the disputed restrictions on its statutory
    authority to approve “minimization procedures” designed to prevent the acquisition, retention,
    and dissemination within the government of material gathered in an electronic surveillance that
    is unnecessary to the government’s need for foreign intelligence information. 50 U.S.C. §


    This court has authority “to review the denial of any application” under FISA. Id. §
    1803(b). The FISA court’s order is styled as a grant of the application “as modified.” It seems
    obvious, however, that the FISA court’s order actually denied the application to the extent it
    rejected a significant portion of the government’s proposed minimization procedures and
    imposed restrictions on Department of Justice investigations that the government opposes.
    Indeed, the FISA court was clear in rejecting a portion of the application. Under these
    circumstances, we have jurisdiction to review the FISA court’s order; to conclude otherwise
    would elevate form over substance and deprive the government of judicial review of the
    minimization procedures imposed by the FISA court. See Mobile Comm. Corp. v. FCC, 77
    F.3d 1399, 1403-04 (D.C. Cir.) (grant of station license subject to condition that is
    unacceptable to applicant is subject to judicial review under statute that permits such review
    when application for license is denied), cert. denied, 519 U.S. 823 (1996).

    Supreme Court’s Special Needs Cases

    The distinction between ordinary criminal prosecutions and extraordinary situations
    underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches
    that are designed to serve the government’s “special needs, beyond the normal need for law
    enforcement.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting
    Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted)) (random
    drug-testing of student athletes).32 Apprehending drunk drivers and securing the border
    constitute such unique interests beyond ordinary, general law enforcement. Id. at 654 (citing
    Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez-
    , 428 U.S. 543 (1976)).

    A recent case, City of Indianapolis v. Edmond, 531 U.S. 32 (2000), is relied on by
    both the government and amici. In that case, the Court held that a highway check point
    designed to catch drug dealers did not fit within its special needs exception because the
    government’s “primary purpose” was merely “to uncover evidence of ordinary criminal
    wrongdoing.” Id. at 41-42. The Court rejected the government’s argument that the “severe and
    intractable nature of the drug problem” was sufficient justification for such a dragnet seizure
    lacking any individualized suspicion. Id. at 42. Amici particularly rely on the Court’s statement
    that “the gravity of the threat alone cannot be dispositive of questions concerning what means
    law enforcement officers may employ to pursue a given purpose.” Id.

    But by “purpose” the Court makes clear it was referring not to a subjective intent, which
    is not relevant in ordinary Fourth Amendment probable cause analysis, but rather to a
    programmatic purpose. The Court distinguished the prior check point cases Martinez-Fuerte
    (involving checkpoints less than 100 miles from the Mexican border) and Sitz (checkpoints
    to detect intoxicated motorists) on the ground that the former involved the government’s
    “longstanding concern for the protection of the integrity of the border,” id. at 38 (quoting
    United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)), and the latter was
    “aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways.”
    Id. at 39. The Court emphasized that it was decidedly not drawing a distinction between
    suspicionless seizures with a “non-law-enforcement primary purpose” and those designed for
    law enforcement. Id. at 44 n.1. Rather, the Court distinguished general crime control
    programs and those that have another particular purpose, such as protection of citizens against
    special hazards or protection of our borders. The Court specifically acknowledged that an
    appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id.
    at 44. The nature of the “emergency,” which is simply another word for threat, takes the matter
    out of the realm of ordinary crime control.33


    FISA’s general programmatic purpose, to protect the nation against terrorists and
    espionage threats directed by foreign powers, has from its outset been distinguishable from
    “ordinary crime control.” After the events of September 11, 2001, though, it is hard to
    imagine greater emergencies facing Americans than those experienced on that date.

    We acknowledge, however, that the constitutional question presented by this
    case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth
    Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs
    cases involve random stops (seizures) not electronic searches. In one sense, they can be
    thought of as a greater encroachment into personal privacy because they are not based on any
    particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an
    automobile stop accompanied by questioning.

    Although the Court in City of Indianapolis cautioned that the threat to society is not
    dispositive in determining whether a search or seizure is reasonable, it certainly remains a
    crucial factor. Our case may well involve the most serious threat our country faces. Even
    without taking into account the President’s inherent constitutional authority to conduct
    warrantless foreign intelligence surveillance, we think the procedures and government
    showings required under FISA, if they do not meet the minimum Fourth Amendment warrant
    standards, certainly come close. We, therefore, believe firmly, applying the balancing test
    drawn from Keith, that FISA as amended is constitutional because the surveillances it
    authorizes are reasonable.

    Accordingly, we reverse the FISA court’s orders in this case to the extent they imposed
    conditions on the grant of the government’s applications, vacate the FISA court’s Rule 11, and
    remand with instructions to grant the applications as submitted and proceed henceforth in
    accordance with this opinion.

    PDF Version


  5. HaroldHutchison says:

    The real damage, though, is the fact that we have now tipped off the terrorists. They aren’t going to call overseas and talk about anything that could help us connect the dots to prevent another 9/11, they’re going to go for face-to-face meetings, like the one Mohammed Atta had in Prague with Ahmed al-Ani.

    The thing is, we know that they met in Prague – the Czechs have an eyewitness. We don’t know what they talked about.

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  7. Snapple says:

    I will have to read all this several times, but one observation.
    I notice your post mentioned that Al Qaeda is talking to AMERICAN TRAITORS.
    I think that may be true.
    It’s not just some foreigners/Isslamists here who are terrorists.
    That’s what people don’t really get. Americans may have had some hand in 9-11 and may be helping Al Qaeda.