Jan 05 2006

FISC Judges Get Education

Published by at 12:30 pm under All General Discussions,FISA-NSA

Now, I am sure the vast majority of the judges on the FISC are outstanding and upstanding jurists with patriotic intentions to protect the country and our laws. So I am not expecting a huge outcry from them after the briefing on the NSA process of listening in on communications between known terrorists outside this country and people inside the country. Why? Because I am 99% confident the leads generated by the NSA monitoring make their way as proof of probable cause into the FISA process.

And this story proves me right.

Several judges on the Foreign Intelligence Surveillance Court said they want to hear directly from administration officials why President Bush believed he had the authority to order, without the court’s permission, wiretapping of some phone calls and e-mails after the Sept. 11, 2001, attacks. Of serious concern to several judges is whether any information gleaned from intercepts by the National Security Agency was later used to gain their permission for wiretaps without the source being disclosed.

The court is made up of 11 judges who, on a rotating basis, hear government applications for surveillance warrants. But only the presiding judge, currently Colleen Kollar-Kotelly, was notified of the government eavesdropping program.

OK, stop right here. What the reporters never seem to determine is why would only the Chief FISC judge be aware of the NSA program? If the NSA program was a way to supposedly get around a FISA warrant, why tell the FISC Chief Judge?

Simple. The NSA program is a precursor step to FISA, and the Chief Judge needs to understand where the leads are coming from which are being used to establish probable cause. Nowhere does any reporter ask the obvious – was NSA feeding leads to FISA for criminal investigation?

I will say this again and again, but NSA monitoring of terrorists overseas is legal – no one disputes that. Therefore it is a legal warrantless surveillance, which gives it equal standing with legal warranted surveillance. The two cases, both legal, share the same conditions: things are discovered during surveillance.

So like the mobster whose calls are being monitored under a court warrant, his calls to a hotel for reservations or his wise-guy bud for some planning discussions, do not require warrants for the parties at the other end of the calls. There is no need to get a warrant for the hotel or his buddy in crime because the target under surveillance is on one side of the communications and the warrant covers him and his contacts.

This is the same with NSA, which had legal authority to listen in on terrorists overseas, and whoever they are in contact with here in the US. What NSA probably does is make sure the US contact is worthy of further investigation. They will see if the terrorist is booking a hotel room (innocent, no need to go to FISA) or is talking to his field agent planning an attack (find and stop this guy – go to FISA).

So, if NSA leads are being passed to FISA when they pass a threshold of seriousness and accuracy, then the Chief FISC Judge would need to be briefed, at a minimum, to work out the process and standards of admitting NSA intel as probable cause. That is the minimal need-to-know for the FISC. The other judges would have to take it on face value the Chief Judge was aware of all the details and monitoring the process for abuse.

In comes the naysayer, Mr. know-better:

One judge, James Robertson, who also serves on the federal bench in Washington, resigned his seat on the surveillance court in protest shortly after the wiretapping was revealed by the New York Times in mid-December.

My understanding is he resigned BEFORE the story broke – which is important. Recall that the NY Times was aware of this Risen mess (because his facts are so screwed up, like usual) a year ago. And so was the administration. And apparently it came to a head before the story ran. Which is why Robertson resigned.

In the early reporting on his resignation, far left liberal supporters speaking for Robertson said he was upset that the NSA program was ‘tainting’ the FISA process. Again, it doesn’t take a rocket scientist to see that the only way NSA intel could infect FISA was when it was being used in arguing probable cause as leads from NSA. Leads were being passed to FISA to follow up on those terrorist contacts in the US and some purists did not like it.

Folks, that is the system WORKING! And now the left is against leads on terrorists in the US from intel being passed to law enforcement via FISA to begin our internal investigations. They don’t want us stopping terrorists.

Think about this scenario. NSA gets lead on Atta 2.0 in the US. NSA passes this to FISA supporting their claim of probable cause with their intel on Atta 2.0 calling Bin Laden 5 times. But Robertson and others don’t like the fact that the evidence on Atta 2.0 was gathered without a warrant!!! Result: no intel (warrantless surveillance by definition) can be used to find and stop terrorists in the US.

There is no other reason for only the Chief FISC Judge to be briefed on the NSA program, and why Robertson felt FISA was being ‘tainted’. Robertson must have figured out where these intercepts were coming from when they showed up in evidence of probable cause. And he balked, then he talked. They admit as much

Kollar-Kotelly began pressing for a closed government briefing for the remaining members of the court on Dec. 19, the day she learned of Robertson’s concerns. Other judges wanted to know, as Robertson had, whether the administration had misled their court about its sources of information on possible terrorism suspects.

Kollar-Kotelly had privately raised concerns in 2004 about the risk that the government could taint the integrity of the court’s work by using information it gained via wiretapping to obtain warrants from judges under the Foreign Intelligence Surveillance Act.

That’s it folks. Robertson was not told the probable cause was coming from intel because he did not have a need to know. So instead of working within the system he, or someone, tried to destroy our defenses. And he is not alone

Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained.

If everything worked as expected, that is what happened. Scary. How else do we get intel leads on terrorists here in the US to the FBI? Mind-melding?

Adding Link to Don Surber’s best of the day party.

12 responses so far

12 Responses to “FISC Judges Get Education”

  1. MerryJ1 says:


    You’ve got a large, essential part of the FISA-problem story on a previous blog of yours, I think 12/26 or 12/27.

    A tip of the iceberg is alluded to in the Coleen Rowley letter to FBI Director Mueller …: http://www.time.com/time/covers/1101020603/memo.html

    …but just a tip. The court modified or turned down 179 Bush-Admin warrant requests, versus just one modified Clinton Admin requests.

  2. AJStrata says:


    Yes, it is a repeat. But the first posts were speculation. This post points to FISC judge comments confirming my speculation. I am almost 100% confident this is about judges fighting the use of intel to authorize warrants on people in the US. The leads discovered by listening in on terrorists are valid. And listening in on the US side for a while to determine whether they represent something worth taking to FISA is valid. Aren’t we supposed to be able to go to FISA after the fact? Well, apparently not.

  3. clarice says:

    AJ It is a bitch to register at your site and I can’t find you email addy which is why it is taking me so long to respond to your JOM inquiry.

    I don’t pretend to know the details of the NSA system, but I think you’ve made a very plausible case of how it was used when they located someone of interest here based on his communications with others abroad.

    Someone has suggested that NSA program is being bypassed now with the terrorists using static sites–where they post their info and convey the password to others to enter. I hope not. I hope we have a way to deal with that. Otherwise opening up your own blogsite would allow you to get around every intel screen.

  4. AJStrata says:



    Sorry for the WordPress challenges. I have yet to get my email address up on the site (I encode it so bots cannot grab it. I’ll post it here in a bit.

    The thing has been bugging me is the deliberate are confused representation of what this is about. Today’s WaPo article clearly indicates this is about some judges not wanting to use intel as probable cause. I just cannot see any other answer to what is out there in the reporting (not the speculating!). And if this is about leftist leaning judges balking at using leads developed by the NSA – then this should be explained to the public.

    It is not so much how NSA does their job – though that is the weeds the anti Bush crowd want everyone to focus on. The NSA gets leads. Start from there.

    How do they pass the leads on to the FBI when the lead runs to a person now in the US? FISA. For the FBI to monitor them they need to go to FISA.

    There is no complexity here. Classic Plame Game misdirection. All the lawyers have their heads down running speculative scenarios of Bush tapping people’s phones in the US when that is not what is happening.

    Well, if I am right and this is about some leftist Judges resisting the use of leads from the NSA from their monitoring of Al Qaeda, those calling for impeachment will look mighty stupid and the NY Times should be hauled in front of Congress to explain their actions.

    Cheers, AJStrata

    Here is the email address


  5. Larwyn says:

    Lefty Judges interfering!

    If this is confirmed (NPI), it will prove God Loves America
    and wants us to survive for at least a few more years?/decades?/

    Sure make for even more excitiment at the Alito hearings.

  6. boris says:

    I based a different point on a similar premise at JOM that with a legal wiretap on the local crime boss the FBI can monitor a call to the out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. My point there was that applying FISA restrictions to criminal investiation would be unworkable …

    (1) No monitoring without warrants for all other parties

    (2) 72 hour retro warrants allowed “in emergency”

    (3) Probable cause for retro warrant needs to be independent of monitored content

    If probable cause from ‘tainted’ monitoring is the dispute, I think the basic premise is straightforward enough to take public. In a criminal investigation getting a warrant for Lefty Icepick based on the criminal content of his conversation with the legally wiretapped crime boss is a no brainer.

  7. clarice says:

    AJ–I am quite sure you are right about that portion of the NSA program which is more than initial chatter counts and tracks –again more dreck flung in the air to fool the dummies and create a storm.

    In my lifetime we have not had a President who has tried to be this scrupulous about following his obligations..

  8. Larwyn says:

    Has Clarice and the other attorneys looked at and read this new bill?
    Lots of “commander in chief’s” power iin it per my non-lawyer reading.
    Hugh Hewitt provided the link.

    For Immediate Release
    Office of the Press Secretary
    December 30, 2005 President’s Statement on Signing of H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”
    Today, I have signed into law H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006.” The Act provides resources needed to fight the war on terror, help citizens of the Gulf States recover from devastating hurricanes, and protect Americans from a potential influenza pandemic. Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President. Section 8059 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2006 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8059 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President’s constitutional authority as Commander in Chief. A proviso in the Act’s appropriation for “Operation and Maintenance, Defense-Wide” purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(b), 8032, 8037(b), and 8100 purport to specify the content of portions of future budget requests to the Congress. The executive branch shall construe these provisions relating to planning and making of budget recommendations in a manner consistent with the President’s constitutional authority to require the opinions of the heads of departments, to supervise the unitary executive branch, and to recommend for congressional consideration such measures as the President shall judge necessary and expedient. Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha. The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President’s constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief. The executive branch shall construe provisions of the Act relating to race, ethnicity, gender, and State residency, such as sections 8014, 8020 and 8057, in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution’s Fifth Amendment. The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005. Language in Division B of the Act, under the heading “Office of Justice Programs, State and Local Law Enforcement Assistance,” purports to require the Attorney General to consult congressional committees prior to allocating appropriations for expenditure to execute the law. Because the President’s constitutional authority to supervise the unitary executive branch and take care that the laws be faithfully executed cannot be made by law subject to a requirement to consult with congressional committees or to involve them in executive decision-making, the executive branch shall construe the provision to require only notification. At the same time, the Attorney General shall, as a matter of comity between the executive and legislative branches, seek and consider the views of appropriate committees in this matter as the Attorney General deems appropriate. Certain provisions in the Act purport to allocate funds for specified purposes as set forth in the joint explanatory statement of managers that accompanied the Act or other Acts; to make changes in statements of managers that accompanied various appropriations bills reported from conferences in the past; or to direct compliance with a committee report. Such provisions include section 8044 in Division A, and sections 5022, 5023, and 5024 and language under the heading “Natural Resources Conservation Service, Conservation Operations” in Division B, of the Act. Other provisions of the Act, such as sections 8073 and 8082 in Division A, purport to give binding effect to legislative documents not presented to the President. The executive branch shall construe all these provisions in a manner consistent with the bicameral passage and presentment requirements of the Constitution for the making of a law. GEORGE W. BUSH THE WHITE HOUSE, December 30, 2005. # # #

    Click here: President’s Statement on Signing of H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations t

  9. MerryJ1 says:


    OK, yes, we’re on the same page.

    I thought I had followed links from your prior post, but what I found was not speculation. Some of the FISA judges were overtly blocking, trying to retain the Gorelick wall. I know I e-mailed links on that to someone, but I’ve cleared my ‘sent’ files since then. I do know that I included links to stuff on your site in that e-mail, and received a ‘thank you’ from my friend for the intro. You do have good stuff!

    I’ll try a little brain-wracking; if I can remember my sources or find some jotted notes to myself, I’ll send it.

  10. Ghost Dansing says:

    Dubya gained nothing in terms of additional capability by circumventing the established provisions. By circumventing the established provisions he has jeopardized National Security by making the entire capability and effort public and a matter of public debate. He is incompetent.

    The way the N.S.A.’s role has expanded has prompted concern even from some of its former leaders, like Bobby R. Inman, a retired admiral who was N.S.A. director from 1977 to 1981. Admiral Inman said that while he supported the decision to step up eavesdropping against potential terrorists immediately after the 2001 attacks, the Bush administration should have tried to change the Foreign Intelligence Surveillance Act to provide explicit legal authorization for what N.S.A. was doing.

    “What I don’t understand is why when you’re proposing the Patriot Act, you don’t set up an oversight mechanism for this?” Admiral Inman said in an interview. “I would have preferred an approach to try to gain legislation to try to operate with new technology and with an audit of how this technology was used.”

    The reason Dubya didn’t do it the right way, is because of his ideology. This Republican administration uses every excuse to expand the power and scope of the Executive Branch, even where that authority has historically been curtailed due to abuse.

  11. AJStrata says:

    Ghost, you are assuming he bypassed processes. Looks like some in the process don’t want to use intel from NSA as leads to terrorists in the US…

    Now if I am right (and I probably am), then you have beed distracted by people who aren’t all that good at distracting!

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