Oct 14 2007

The NY Times And Their FISA Lies

Published by at 8:58 am under All General Discussions,FISA-NSA

The NY Times has misrepresented the FISA-NSA debate since they leaked the details of out monitoring of terrorists two years ago and tipped off al-Qaeda on what we were doing. They are at it again today. But first I want to go back to their original lies and remind folks what we have learned since December 2005 about the roles of FISA and the NSA.

Back in December 2005 the NY Times tried to say the US was spying on Americans without warrants (my first post here with snippets from the article). But the fact is the US monitors Americans without warrants everyday in this country. It has to do with the difference between the TARGET of the warrant (the person under surveillance) and CONTACTS that TARGET has when he communicates.

As long as the TARGET is a legal target anyone who comes into contact with them can be monitored for just those contacts. Now it has become clear over the years that (a) the NSA TARGETS are terrorists overseas and (b) the only calls in the US or dealing with Americans being monitored and followed up on are those in CONTACT with the TARGET. That is how it works here in the US and when we spy on terrorists planning to come here and kill thousands of us as part of the war on America. That is why Democrats and a liberal judge have been trying to make the law for monitoring terrorists STRICTER than for monitoring a drug lord or crime boss here in the US. They want warrants for all the contacts. AND, for they want the courts to decide who is a legitimate target for our military by demanding warrants for monitoring enemies overseas.

The NY Times actually, many months later, confirmed this to be the case and exposed the lies they initially printed:

The [FIS] court would be able to determine whether the program is “reasonably designed” to focus on the communications of actual terrorism suspects and people in the United States who communicate with them. That determination is now left entirely in the hands of the security agency under an internal checklist.

Emphasis mine. There you have it from the NY Times itself. The program IS designed to TARGET terrorists overseas and is limited to monitoring only those communications of CONTACTS with the TARGET. That is not what the NY Times claimed and has claimed off and on. No one in the US has become a TARGET of NSA surveillance without a FIS Court warrant. No one.

What is happening is the NSA leads are now passed to the FBI for investigation. No focused surveillance is allowed on these leads until the FBI has determined there is sufficient concern to warrant a FIS Court warrant. Again, this is all proven out in the reporting. First it should be noted that there has to be some hint of a terrorism link when the NSA does its assessment, and there are not that many people falling under the surveillance:

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

But I digress. The NY Times even left evidence of their lying in their original reporting, which I noticed and from there was able to unravel the truth of the matter over time. The key to the lie was the quote from the FIS Court judge who ‘resigned in protest’ over the affair:

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 again. They key word here is ‘taint’. The article claimed NSA was bypassing the FIS Court, but you cannot ‘taint’ or ‘pollute’ a process by avoiding it. But you can by bringing something new into the mix. And that was really what this was all about. Over time I learned that prior to 9-11 the NSA would not pass on details on who was communicating with terrorists overseas from the US. Instead the through the details such as who and where in the US away. I discovered this in researching the events around the time FISA was created.

The reason this was done was because the FIS Court refused to consider evidence from NSA in determining probable cause, and was so over-the-top-about it even confirming evidence gathered by the FBI would be tossed out if the original lead was from the NSA monitoring terrorists. Want to know how dumb that rule was? Well, General Hayden – then head of NSA and now head of CIA – admitted the NSA had intercepted communications from the 9-11 highjackers prior to 9-11, and because of FIS Court’s suicidal policy never passed the information on where they were and who they were. This was confirmed by General Hayden himself:

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.

Later Hayden confirmed the fact this was not a fictional example, but history:

I [Hayden] testified in open session to the House Intel Committee in April of the year 2000. At the time, I created some looks of disbelief when I said that if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him.”
He admits that we knew that Mohamed Atta and his crew were in the US. But he says that “we did not know anything more” because prior to 9/11 “Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA “.

So what is the story really about? It is about the Gorelick Wall which was cited by the 9-11 commission as the primary reason the US did not see 9-11 coming and was unable to stop it. I have two posts the prove the fight was over whether we should continue to enforce the Gorelick Wall or focus on protecting national security and American lives. This first post is on the reporting of the legal battle the FIS Court judges lost to retain the blinders, and this second post goes into the court documents and notes how the presiding FIS Court judge specifically and repeatedly cites the Gorelick memo as the basis for his resistance to the changes being made as a result of the Patriot Act (legal and binding legislation).

So it seems what we have is a disgruntled judge (and some others with media connections – possibly from Congress) who were against the laws being passed (The Patriot Act), the changes being made to remove the Gorelick Wall, and against Bush in general.

That is the essence of the story – a feud on legal theory, with some opportunistic politics and manipulation of the media thrown in as well. I must note that when all the FIS Court judges went to Capitol Hill to testify on this they finally corrected the record:

Judge Baker: Senator, did the statute limit the President? You created a balance between them, and I don’t think it took away the inherent authority that Judge Kornblum talked about. He didn’t call it “inherent,” he doesn’t like that. But the whole thing is that if in the course of collecting the foreign stuff, you are also picking up domestic stuff, which apparently is happening, I don’t know that that’s–it becomes a real question, you know, is he under his inherent power? Is he running around the statute?

Judge Kornblum: To be admissible, the evidence would have had to have been lawfully seized or lawfully obtained and the standard that the district judge would use is that, depending upon where this is, is the law in his circuit. In most of the circuits, the law is clear that the President has the authority to do warrantless surveillance if it is to collect foreign intelligence and it is targeting foreign powers or agents. If the facts support that, then the district judge could make that finding and admit the evidence, just as they did in Truong-Humphrey.

In significant cases, involving major complex investigations such as the bombings of the U.S. Embassies in Africa, and the millennium investigations, when criminal investigations of FISA targets were being conducted concurrently, and prosecution was likely, this Court became the “wall” so that FISA information could not be disseminated to criminal prosecutors without the Court’s approval. In some cases where this Court was the “wall,” the procedures seemed to have functioned as provided in the Court’s orders; however, in an alarming number of instances, there have been troubling results.

There you have it. The President can monitor enemies overseas. And in that process you sweep up contacts inside the United States. And the last bit, about the African Embassy bombings, is a reminder that if you don’t investigate these leads it can result in the deaths of thousands of Americans. So, with this long winded history lesson finally out of the way, let’s get to the NY Times’ FISA lies for today:

The 1978 Foreign Intelligence Surveillance Act, or FISA, requires a warrant to intercept international communications involving anyone in the United States. A secret court has granted these warrants quickly nearly every time it has been asked. After 9/11, the Patriot Act made it even easier to conduct surveillance, especially in hot pursuit of terrorists.

Big lie there. FIS Court requires a warrant when ALL communications of anyone in the US is being monitored. There is no warrant required in domestic surveillance for CONTACTS who communicate with TARGETS. And that rule applies to FISA as well. And no, the changes made since 9-11 do not make the FIS Court process easier at all. All they did was provide for the addition of NSA leads to be considered for investigation by the FBI and subsequent FIS Court warrant. In fact, to this day an NSA lead alone CANNOT be used to gain a FIS Court warrant. The FBI needs to have collaborative evidence with the NSA lead. Big lie.

Mr. Bush ignored the FISA law and ordered the National Security Agency to intercept phone calls and e-mail between people abroad and people in the United States without a warrant, as long as “the target” was not in this country.

As the NY Times own reporting shows, and much more reporting backs up, the NSA has not changed its operations for decades. They monitor our enemies overseas. They monitor terrorists. What has changes is what do we do when those terrorists contact someone in the US. Prior to 9-11 the information on who and where the contact was made in the US was thrown away. Along with that information we threw away 3,000 lives because of some paranoid fear of abuse of powers. 3,000 people should not have to die to assuage liberal paranoia. The fact is the changes were in the FIS Court vetting process and their refusal to consider leads from NSA as valid threats against America – as dumb as that now sounds.

The president did not announce his decision. He allowed a few lawmakers to be briefed but withheld key documents. The special intelligence court was in the dark until The Times disclosed the spying in December 2005.

Clearly this idiot did not read anything about the reporting on FISA. The two presiding judges AUTHORIZED the changes in FIS Court processes. They knew about them, but THEY kept them hidden from other members of the FIS Court. They were the ones who reviewed the NSA data and surveillance requests that included surveillance data. Another big lie.

The fact is the NY Times is misleading its readers. That is OK if their readers wish to be lied to and manipulated for other peoples’ agendas. But the fact is we need to listen in on our enemies plans and when they contact someone in the US we need to investigate. If that investigation uncovers troubling evidence, then the FIS Court will issue a warrant so ALL their communications are then monitored. This is how it works in criminal surveillance cases. You get secondary warrants on CONTACTS who communicate with surveillance TARGETS if the investigation proves these CONTACTS are involved in the crime(s) being investigated.

Protecting America is job number one, worried about the fears of paranoid fools is not a Federal Government responsibility.

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