Feb 19 2006

FISA Risking American Lives

Published by at 10:02 pm under All General Discussions,FISA-NSA

** update at the end **

I finally think the tide is turning in the NSA-FISA debate. When the story broke the NY Times erroneously left the impression that Bush had the NSA bypassing FISA. The truth is now clearly known, as I have been saying, that FISA was being asked to address NSA leads on terrorists in the US and FISA WAS REFUSING! The two Chief FISA Court Judges said so in a Washington Post article the other week:

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

The story we have been told is 180 degrees backwards. The NSA is not threatening the rights of Americans. In fact they were not ordered to change their surveillance one bit from what they did back in 1981. What changed is Bush asked the FBI to follow up leads, and the FBI tried to take the important ones to the FISA Court to get complete surveillance on these potential killers here in the US.

But FISA Judges decided on their own leads that from the FBI = Good and leads from the NSA = Bad. With this knowledge we can determine how things went pre 9-11, when all the leads from intelligence agencies monitoring terrorist were thrown out when the terrorist reached our borders. I have written about these exact same examples that are now presented in a San Antonio Express opinion piece:

To illustrate the limitations imposed by the Foreign Intelligence Surveillance Act — passed by Congress in 1978 — Hayden cited a Saudi terror leader whose name was then not widely known: “If … Osama bin Laden is walking across the peace bridge from Niagara Falls, Ontario, to Niagara Falls, New York, as he gets to the New York side, he is an American person and my agency must respect his rights against unreasonable search and seizure.”

Hayden’s testimony about FISA six years ago proved to be lethally prescient. When FBI agents in Minneapolis arrested a French-born man of Moroccan descent named Zacarias Moussaoui during the summer of 2001, the Justice Department declined to issue a FISA warrant to search his computer files.

In 1999, the NSA began monitoring a cell phone number in Yemen that served as a switchboard for al-Qaida. Among the callers who connected to this switchboard was a “Khalid” in the United States. The NSA dropped surveillance of the caller for fear of violating FISA provisions on domestic spying. Khalid turned out to be Khalid al-Mihdhar, one of the 9-11 hijackers who took over American Airlines Flight 77 and flew it into the Pentagon.

Traveling overseas — for instance, to a terrorist conclave in Malaysia in 2000 — al-Mihdhar and fellow hijacker Nawaf al-Hazmi were under CIA surveillance. Back in the United States, however, FBI lawyers were reluctant to initiate a criminal investigation due to concerns about breaching the FISA wall between domestic and foreign intelligence.

Wake up America – some in Congress, enabled by a BDS mad media, are trying to put back in place all the barriers that allowed 9-11 to go unnoticed.

When FISA judges determine on their own that information’s life saving value is simply a case of which three letter agency got the information – we are in trouble. Judges are just not that smart – and how could they be if that is their test on the value of information to save lives?

Senator Frist said today there is no reason to adjust FISA. I disagree. FISA will never control how our military monitors our enemies overseas. The judicial branch is not constitutionally authorized to control national security. But if FISA’s sole purpose is to throw out leads from the NSA, or wait until the FBI can confirm the lead independently (which can never happen in 72 hours) I think it is time to toss out FISA and the secret judges who are making idiotic decisions about national security in a secret Star Chamber court. In this case, the FISA Star Chamber is violating our rights to protection by violating the constitutional authority of the President. FISA will not even look at an open intercept of Bin Laden calling his terrorists to start the next attack if it came from the NSA (which is the likeliest place it will come from). They failed us on 9-11 thanks to dumb rules and they are risking us now.

It is time to disband the court then.


Right on cue the NY Times comes out showing it is not ‘the paper of record’ but ‘the paper of imbecilic’

After two months of insisting that President Bush did not need court approval to authorize the wiretapping of calls between the United States and suspected terrorists abroad, the administration is trying to resist pressure for judicial review while pushing for retroactive Congressional approval of the program.

The administration opened negotiations with Congress last week, but it is far from clear whether Mr. Bush will be able to fend off calls from Democrats and some Republicans for increased oversight of the eavesdropping program, which is run by the National Security Agency.

Oh, they can fend it off quite easily. The NSA program is a military action to monitor our enemies and stop attacks. The Judiciary and Congress have no more say on this matter than they do on how to wage any military action. They are not in the loop. Bush is offering them a face-saving out to exercise oversight on the leads passed to the FISA court – which no one in Congress will touch with a ten foot poll. The reason Congress runs to the FISA Court is they do not want to be blamed the first time a lead is not followed and an attack succeeds. They want to dump this on the FISA Court. It is a sad an pathetic joke all this propaganda.

Some, like Lindsay Graham, are just figuring it out. But they won’t admit in public the root of the problem is the FISA judges and not the NSA:

“I do believe we can provide oversight in a meaningful way without compromising the program,” he said, “and I am adamant that the courts have some role when it comes to warrants. If you’re going to follow an American citizen around for an extended period of time believing they’re collaborating with the enemy, at some point in time, you need to get some judicial review, because mistakes can be made.”

Duh. The FBI has been trying to get these leads to the court but they will not listen. FISA judges have decided ‘NSA’ means the information is no good. Somebody better just be honest with America and point out the fact some judges are simply prudes and cannot fathom any valid information coming from the military. And they should be moved off the bench for that whacked out kind of thinking.

What is amazing is the NY Times still doesn’t understand their own story:

Four other leading Senate Republicans, including the heads of three committees — Judiciary, Homeland Security and Intelligence — have said they would prefer some degree of judicial oversight. Their positions, if they hold, could make the negotiations more difficult.

Why do they prefer more ‘judicial oversite’? Well, they want leads from NSA that the FBI deemed serious to be allowed with FISA warrants for surveillance of all communications – just in case the terrorist in question has partners in the US and is readying his attack. Nothing complicated there.

The NY Times has this story so backwards it begs the question are they stupid or simply bad propagandists. No matter, the result is they helped Al Qaeda avoid detection:

“Unfortunately, we’re having this discussion,” he [President Bush] said of the debate over wiretapping. “It’s too bad, because guess who listens to the discussion: the enemy.”

He added: “The enemy is adjusting. But I’m going to tell you something. I’m doing the right thing. Washington is a town that says, you didn’t connect the dots, and then when you do connect the dots, they say you’re wrong.”

Seems Al Qaeda is more awake and aware than the US media. No surprise there either. At least Republican Senators woke up:

But some lawmakers have given glimpses of the conversations, including Senator Olympia J. Snowe, Republican of Maine, a member of the intelligence panel who was prepared to vote with Democrats on Thursday to open an inquiry until the White House agreed to negotiate.

Ms. Snowe, who favors some kind of judicial review, characterized the talks as a “fundamental shift” in the debate. “I think there has been a quantum leap,” she said in an interview, adding that senators were “really trying to wrestle the best way to craft a measured bill.”

That fundamental shift was the realization that the NSA never bypassed FISA but its leads were finally, after 9-11, sent to the FBI and eventually to the FISA Court. Instead of bypassing FISA the administration tried to engage FISA and FISA balked. FISA loved the Gorelick Wall, it was their reason to exist. They cannot stand the idea their reason to exist is now to simply make sure leads from terrorists communicating to people in the US are actually leads from terrorists communicating to people in the US. It is not a rubber stamp, it is a mindless check.

Want proof FISA is the one that will need to change and not NSA? Read this statement without the NY Times spin

Without offering specifics, Mr. Roberts spoke in an interview last week of “streamlining FISA” and said the N.S.A. would have to be involved in those negotiations.

Mr. DeWine is calling for legislation that would explicitly authorize the wiretapping and exempt it from the 1978 law that created the intelligence court to review classified applications for wiretapping inside the United States. The White House has embraced that concept, because it would take away the uncertainties of judicial review.

FISA will be changed and NSA will help define how to make the changes.

QED: Liberals misfired again, but this time truly helped Al Qaeda in their efforts to attack us.


Proof the Liberals are off target and heading over the cliff is the rantings of one Glenn Greenwald:

Bush followers, led by Karl Rove, and even some frightened Democrats, have loudly insisted that this scandal is actually beneficial for Republicans, because they can use it to depict Democrats as weak on national security.

Ironically funny is when a liberal falls for the trap of playing the Rove card to scare liberals, while complaining about Republicans playing the Bin Laden card to scare the country. If there ever was a perfect example of WHY liberals are seen as totally lost on national security this is it. Rove scares the left because they may lose votes – and history has proven he can. Bin Laden and his comrades scare the country because they kill people – and history has proven he can, as well.

It will all fade away with some nice legislation designed to render legal the President’s four years of deliberate law-breaking. But the NSA scandal continues to dominate the news.

Well, just because the NYTimes, Washington Post and Liberal bloggers are the last to realize what is going on is not a sign the scandal is growing! The fact is, as the FISA Court Judges admitted, FISA refused to follow the leads provided by NSA in the normal progress of the decades old mission. Greenwald cannot find a single instance of an illegal act because there are none. He fantasizes there were some, but he has no evidence – just liberal dreams of political domination. Sort of sad really. Greenwald goes on to review the same stories I did, but weaving a tale of liberal success around facts that illustrate the NSA story has turned away from fanatical fear mongers like Greenwald (“Rove is here, Rove is heeeeeeeere!”).

Liberals are quite humorous, when they aren’t risking everyone’s life worrying about the Rove-Boogeyman.

4 responses so far

4 Responses to “FISA Risking American Lives”

  1. Decision '08 says:

    White House Position on NSA Program Becomes Clearer

    It’s becoming abundantly clear that the Administration doesn’t want judicial review of the NSA surveillance program, though it appears willing to submit to greater Congressional oversight. The reasons for that could be many (an innocent e…

  2. Reverse Polarity

    If anyone in the blogosphere has been even more inspired than I have about providing correctives to the NSA "domestic spying" story, it's AJ Strata, who continues to push through the fog of major media spin (see today's WaPo and NYT…

  3. gcotharn says:

    I’ve been reading all your posts, and somehow I’ve gotten confused:

    NSA quit going to through the FISA channel which was specially prescribed after 9/11, b/c FISA judges refused to breach the Gorelick Wall and approve the warrant requests.

    If that’s correct, what happened next?

    Did the FBI then simply wiretap w/o a FISA order?

    Or, did the FBI present info gleaned from international “signals intelligence”(including audiotaped phone calls), as part of the evidence to justify a warrant through the regular FISA process – as opposed to the “FISA process specially authorized after 9/11” – thus prompting FISA judges who were looking at warrants coming through regular FISA channels to question where the evidence used to acquire the warrants came from? The answer is that the evidence came from tapping international phone calls, as well as FBI investigation – which did not include domestic wiretapping – which is what the FBI was now asking the FISA court to approve… – did I get that right? Many thanks.

    Also, outstanding series – I’m hanging on every post, as well as all the Able Danger posts.

  4. AJStrata says:


    Partially right. The FBI took the leads to FISA who refused to issue warrants based on the NSA intel. They told the FBI to develop independent probable cause, that they would not touch NSA leads and needed to be told when warrant requests where derived from NSA leads.

    My point about the Gorelick Wall was WHY the refused, their history defending the wall.

    When warrants were refused the NSA caught whatever communications were going overseas. The FBI tried to get independent evidence. Only under FISA warrant could all communication with a US person be monitored.

    Without the warrant terrorists were free to communicate at will and plan their attacks.

    There is no change in the FISA process post 9-11 per say. The difference was NSA leads were going to the FBI and then the FISA Court. FISA had new processes to identify NSA derived leads and put in place the requirement for indepedent probable cause (which eliminates any 72 hour option). FISA judges did try and restrict other evidence retention in 2002, but the FISA Review Court struck down their attempts to retain some of the Gorelick Wall. It was their opinion in 2002, saying they were the Wall and answerable only to themselves which I referenced as evidence of them being Priest of The Gorelick Wall.