Sep 22 2006

Democrat’s Shade Truth On FISA-NSA

Published by at 7:21 am under All General Discussions,FISA-NSA

The Democrats come limping into this fall’s elections attempting to show how they protect America by dismantling our anti-terrorist programs because someplace along the way they decided Bush is a bigger threat to us than Bin Laden and Al Qaeda. Case in point is the usually stalwart top anti-terrorist Democrat in the House on Intelligence, Jane Harmon. She obviously has been recruited to rally the base by making a public statement on FISA and the NSA and how the two work together. Before we get to her comments a quick reminder of where we are (which will bore to death regular readers of this blog)

Prior to 9-11, and going back all the way to the Church Committee that was the impetus for creating FISA, the tradition has been not to have NSA leads which detect possible terrorist activities here in the US passed on by the NSA to law enforcement for action. That tradition was the beginning of the wall between Intel and Law Enforcement that left our borders wide open to 9-11. It was this tradition that made it possible for the 9-11 terrorists to plan and coordinate freely with their masters back in Europe and the ME without any action from our government. CIA Director (and previous NSA Director) Gen. Michael Hayden and President Bush have both asserted we had some of the highjackers in our sites and we did not monitor their calls overseas to known terrorists because of this tradition regarding the US as a ‘safe base’ for our enemies.

After 9-11 Bush took down some of the barriers between the NSA and the FBI (and through the FBI the FISA Court). Contrary to the New York Times’s abysmal reporting on this subject, NSA was not bypassing FISA but actually using it for the very first time to investigate potential terrorists here in the US. Now Congress is faced with having to make the same decision as Bush: protect America or worry about some possible, future abuse of power that spans the NSA, FBI and FISA Court (because each step has checks and balances and would need to be ‘in on’ the abuse to have it actually work). So in facing this challenge Congress illustrates the wisdom of the Founding Fathers who removed Congress from the implementation of war and defense so as to remove all things political.

Back to our case in point and Dem Rep Jane Harmon has come out in a post of her own, at the liberal site Huffington Post no less, to admit there are serious problems with FISA regarding the NSA. But instead of being honest, she makes the ludicrous claim the problems are with the Department of Justice and not with FISA. She should know (and probably does) that not all the barriers were removed between the NSA and FISA over the last five years as attempts to fix FISA were made – and still failed – and the problems still remain with FISA:

First, they claim that FISA is “outmoded.” That might be true had FISA been unaltered over the past 28 years. But FISA has been amended and modernized numerous times, including most recently in the reauthorization of the USA PATRIOT Act in March. The Congressional Research Service reported that 51 separate provisions in 12 different bills have amended FISA. The argument that FISA is “behind the times” should be news to those in this Administration who asked for, and received from Congress, 12 changes to FISA in the last 5 years.

Second, they argue that the process of getting warrants under FISA is too burdensome. I have seen no evidence that the statute itself is the source of that problem. Rather, NSA officials have testified that the administrative process is slow. Most of the red tape has built up within the Executive Branch, and the Executive Branch could fix that through better management. The record proves that this process can and does move efficiently in true emergencies. If there is a backlog, the Executive Branch should fix the problem.

Harmon is kidding herself or being disingenious to her readers. The ‘administrative process’ is established to meet the letter of the law, and she knows it. And the FISA Court has been adamant in requiring this overhead process, as I will show in a moment. So to claim that the NSA or DoJ is the barrier is dishonest. The reality is actually much different and something Democrats are afraid to tell their base. This is because knowing the truth removes a common rallying idea from the liberal base and shows them to be totally clueless at the same time. And here is that little secret the media neglects to inform America on that is key to the issue and publically known: the NSA cannot request or use its leads to acquire a FISA warrant. Who says? The FISA Court itself:

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

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.

Emphasis obviously mine. I wrote about this way back February of this year. It is clear what happened if people read the article (especially news reporters attempting to address this subject and those in Congress who will vote on this mattter). These judges are prejudiced in considering NSA leads valid threats worthy of warrant. It goes back to the quaintly naive tradition set in motion decades ago. What people worry about is abuse. But under the current system the abuse must begin with someone in the NSA, pass the review there, then continue into the FBI, where further investigation of the target must ascertain independent evidence of wrong doing, and then it must pass the review process there to become a request to the FISA Court. To fear someone’s personal vendetta will make it through all those gates and people is simply paranoid. But what we cannot have is our terrorist detection efforts torn down based on this paranoia. Harmon knows better, or should. We all need to know what happened to make informed decisions. Anyone who claims the NSA can get a warrant is just ignorant of the facts. The FISA Court has already struck that down procedurally. Contrarr to the media spin, the NSA’s detection of a communication between Bin Laden and a suicide bomber here in the US is STILL not sufficient probable cause to the FISA Court because of WHERE the lead came from. Part of the wall still exist – and maybe these are the proper minimal elements required to detect abuse and detect pending attacks. It seems so to me at least.

The FISA Review Court, the highest court in the land in this area, held the President has the power to defend us and use intel to do so, and the lower FISA Court itself has worked with the administration to process leads from the NSA via the FBI – but this process takes time. While the process of having the FBI collaborate a lead is serious and deserves a FISA warrant, the NSA continues to monitor the communications overseas to make sure nothing is happening immediately. This is common sense and what America expects. Why the Democrats are afraid to embrace this is simple. They hate Bush so much (because they hate their lack of influence so much) they are willing to mislead to win votes. Joe Wilson once accused Bush of misleading us into war. It seems the Dems and their liberal enablers in the media are willing to mislead us into a false surrender through a false sense of safety over our efforts to stop terrorists.

Addendum: I want to add some more information from that WaPo article back in February to emphasize the fact the NSA leads cannot be used to generate FISA warrants but require FBI garnered supporting information (which makes the emergency warrant fairly useless since finding evidence beyond the NSA leads takes a lot of time):

So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone’s calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully “tagged” as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.

Note: This article supported my contentions way back when that the new process was to pass leads to the FBI who then passed then decided to request warrant’s from the FISA Court.

According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.

It cannot be any plainer: the FISA court will NOT issue a warrant based on the NSA listening in on Bin Laden himself talking to his troops here in the US openly planning to attack us, unless some other collaborative evidence is obtained first. People who think we are doing all we can to stop terrorists are probably scratching their heads over this one. But this is the ‘adminstrative process’ Harmon is referring to – the need to augment the NSA leads with independent information. And that will always take more than a couple of days to acquire and vet.

11 responses so far

11 Responses to “Democrat’s Shade Truth On FISA-NSA”

  1. carol johnson says:

    Excellent, AJ! Although, it will probably fall on some deaf ears even now.

    Did you also hear about a Pentagon report that came out basically investigating itself in the Able Danger situation (Mohammed Atta…WHAT Mohammed Atta?) Of course, they gave themselves a huge pass on whether or not AD could have stopped 9/11! This is SO frustrating!! Curt Weldon is beside himself…but, more to the point, WE SHOULD ALL BE! As long as we have career bureaucrats in the Intelligence Community, the Pentagon and elsewhere, we will be faced with CYA as a legitimate defense for total incompetence.

    /rant off/


  2. First Cup 09.22.06…

    Black as the devil, hot as hell, pure as an angel, sweet as love. ~ Talleyrand


  3. Retired Spook says:

    This is SO frustrating!!

    That’s the understatement of the year, Carol. I haven’t read the entire report yet but I read Congressman Weldon’s response over at Able Danger Blog.

    It amazes me, with all the incompetence and CYA going on in the DOD and related intelligence agencies, that we haven’t been hit again in the last 5 years.

  4. az redneck says:

    And the 2nd article AJ quotes above shows that problems with ‘the wall’ continue within DOJ as well.
    As a JOM reader noted re: Plamegate, all of the top officials even marginally involved with the Plame investigation in State, CIA and DOJ are now gone. All of this indicates a problem worse than incompetence. CYA of course, but also left-leaning officials populating all of our agencies continue to give Bush policies fits.
    Shakespere gave us good advice about lawyers!

  5. carol johnson says:

    Yup…we have come to a sad state of affairs when our fighting men and women have to stop, in the middle of combat, and hire a “lawyer” to CLARIFY their mission for them! This is an outrageously dangerous and idiotic way to fight a war!

    Retired…I read the same Able Danger blog on what Weldon thinks. Gotta agree with him. The bureaucrats in the Pentagon are fighting against our military and treating them as liars and scapegoats for their own gross incompetence. We gotta put a stop to this or it will only get worse the next time some “bureaucrat” looks around for someone to blame for the next attack!!


  6. Retired Spook says:

    We gotta put a stop to this or it will only get worse the next time some “bureaucrat” looks around for someone to blame for the next attack!!

    Carol, I couldn’t agree more. Any ideas? A military coup, maybe? Heh, just kidding.

    I do think that there are probably hundreds, if not thousands, of bureaucrats in our government that should either be in Leavenworth or, at the very least, fired. Sadly I think that our government is just so big and cumbersome that it breeds incompetence like mold in a damp basement. The bureaucratic layers are so thick, correcting the problem/s would be like pealing a very, very large onion — tears and all.

  7. carol johnson says:

    “Carol, I couldn’t agree more. Any ideas? A military coup, maybe? Heh, just kidding.”


    I am of the “rip the damn bandage off quickly and maybe take a little skin with it, than the death by a thousand cuts approach”

    As long as we are “comfortable” with the way things are, the longer this will continue. That said, I am sure there are a zillion things going on behind the scenes that neither you nor I know about. Doesn’t make it any less frustrating though.

    Roger on the mold comparison! LOL.


  8. For Enforcement says:

    The democrats have never been serious about Terrorism, when The Repubs took over the Senate under Reagan they had a subcommittee on Terrorism and Security, the minute the Dems took over the Senate again in 1987, that was among the first committee that went out of business.

  9. Retired Spook says:

    The GOP needs a Harrison Ford type character (Air Force One) to run in 2008 on a platform of “cleaning house” in the State Department and the various Intelligence Agencies. I kind of thought that’s what Porter Goss was going to do at CIA, but we all know how well that worked out, and we haven’t heard a peep out of Hayden since he was confirmed. Actually, one of the worst offenders, IMO, is the DIA.

  10. MerlinOS2 says:

    Retired Spook

    Seems some are already picking up on little oops stuff in the report.

    See the latest post at abledanger blog.

    One thing also about the situation, is that there were several datamining operations going on in parallel. The focus here is on the ATTA op, but there was also one on China working at the same time with it’s possiblity of coming up with some damning info about ChinaGate. I have seen some speculation that the original target was to take down the work on china but the atta work was also hit as collateral damage so as to not see how much the focus was to taking out the china looksee.

  11. MerlinOS2 says:

    Retired Spook

    Check out the latest from Hayden over at the CounterTerrorism Blog