Mar 06 2008

Why We Need The FISA Fixes Back In Place ASAP

Published by at 8:30 am under All General Discussions,FISA-NSA

Some quick FISA facts before we get to the examples of why we cannot go blind and death to the threats brewing overseas. First, prior to 9-11 the NSA detected the 9-11 highjackers in America. But due to insane policies put in place to bar intelligence and law enforcement coordination against foreign targets in the US, the NSA could not pass on to the FBI the locations, numbers, names, etc of the people. Then NSA head, and now head of the CIA, General Hayden has mentioned this sad fact many times in defending Bush’s fixes to the FISA fiasco which allowed 3,000 people to die. First here:

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.

And then here, recalling his testimony under oath to Congress:

He [Hayden] 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 “.

This is the part of the NSA-FISA story that never gets reported because it is why the Dems (and the liberal media) keep losing the votes in Congress when it comes down to it on FISA reform. Prior to 9-11 the FIS Court would not allow NSA generated leads into court as probable cause. They flat out disallowed it, assuming the NSA leads from overseas surveillance were tainted. Even if the NSA did pass the information on to the FBI, the FIS Court would throw it all out and ignore the threat prior to 9-11. This is acknowledged by the two recent heads of the FIS Court, one of which was on that court during 9-11:

The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush’s program. The president’s secret order, issued sometime after the Sept. 11, 2001, attacks, allows the National Security Agency to monitor telephone calls and e-mails between people in the United States and contacts overseas.

Lamberth, the presiding judge at the time of the Sept. 11 attacks, and Kollar-Kotelly, who took over in May 2002, have repeatedly declined to comment on the program or their efforts to protect the FISA court. A Justice Department spokesman also declined to comment.

Both presiding judges agreed not to disclose the secret program to the 10 other FISA judges, who routinely handled some of the government’s most highly classified secrets.

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.

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.

Even after the horrific deaths of 3,000 people on 9-11 some blind justices did not see why leads developed by the NSA were ‘legal’ in the scope of the FIS Court. For the cause of legal theory alone they felt it was a greater risk to America of an NSA lead might accidentally target an innocent suspect (for some small time, since innocence is proven in surveillance as well as guilt) than suicidal terrorists out to kill thousands of Americans in an instant. The ‘logic’ of these positions makes one wonder if these bureaucrats should be spending time with a mental health professional or not. The constitution provides for ensuring the safety of the people, not letting them die in massacres because of some legal theory and fears of the second coming of Nixon.

Look at what happened and after 9-11 and ponder why this should be a big deal? After 9-11 the NSA passed their leads on to the FBI who check them out. Those leads that raise concerns go to the FIS Court (not go around it, as the NY Times so infamously screwed up when the exposed this program). They cannot go to the FIS Court without independent evidence garnered by the FBI. No NSA lead can go to the FIS Court for warrant, not in 1 hour or in 72 hours. That is another lie from the liberal media and the paranoid left wing. It is clear from the presiding judges that you have to have other evidence beyond the NSA intercept to be authorized to do surveillance on someone in the US.

But that is all that changed! The NSA lead goes to the FBI, who investigates and takes the case to the FIS Court which determines whether the person in the US becomes a target open to surveillance. The NSA keeps listening on the folks overseas. And if communications continue between their targets and folks in the US they will get picked up again – but that is it.

So with that history lesson in mind (as opposed to the hand wringing paranoia from the left) check out this news about recent threats and foiled attacks:

Last November, Gilles de Kerchove, the European Union’s anti-terror chief, said that al-Qaeda was the biggest threat to Europe. To confirm this, Western intelligence services have recently established operational links between al-Qaeda in Afghanistan and al-Qaeda in The Islamic Maghreb (AQIM) whose goals include striking at the heart of Europe.

Al-Qaeda has not made any secret of its eagerness to target Europe. Indeed, Ayman al-Zawahiri, al-Qaeda’s number two, has repeatedly threatened Europe. In 2007, numerous al-Qaeda-linked plots were foiled in Europe and several cells were dismantled in France, Spain, Denmark, Belgium, Germany and the United Kingdom. In September, thanks to information provided by US intelligence, Germany arrested three members of an al-Qaeda cell that planned on blowing up the US military base of Ramstein and the Frankfurt airport.

This network allegedly had ties to other European countries since the explosives seized were similar to those used in the London attacks. The investigation also showed that the terrorists had connections to both Pakistan and Syria. Another important fact is that two out of the three alleged terrorists were Muslim converts. In fact, al-Qaeda has for a long time advocated using European nationals, and if possible converts, in terror attacks.

Emphasis mine. The irony of all this is the EU has much broader powers to surveillance their people, and they will take evidence from the NSA without a second thought – because they know the results if they don’t. The fact is all of this activity is overseas and it is this overseas activity a liberal judge hell bent on playing God of America stopped cold in its tracks by deciding the NSA could not monitor ANYONE without a warrant. The Judiciary was going to go to war it seemed – and surrender as their first act. This is why Congress rushed last year to fix the mess the left was making of our national defenses.

We cannot stop attacks if our hands are tied and we are told not to look outside and see what is coming our way. The fixes to FISA after 9-11 were minor and do not allow for abuse. The judges in FIS Court still determine who in the US goes under full surveillance. That has not changed. All that has changed is the Court must recognize leads initiated from NSA. And for this minor adjustment – which could have saved 3,000 lives on 9-11 and has saved many lives since – the left and the Dems are crying about made-up and mythical civil rights abuses.

If there is one issue the GOP should run strong on it is this one – and hammer those who feel we could lose a few hundred lives to avoid a possible investigation into an innocent American who somehow came in contact with our enemies. We need to stop the killing to appease overly paranoid people who think this government is watching them.

2 responses so far

2 Responses to “Why We Need The FISA Fixes Back In Place ASAP”

  1. combat18 says:

    Why hasn’t the decision by this judge been appealed to a higher court?

  2. […] If the fantasy running around these jerks heads was right they would be heroes. But they are just criminals who felt it was their mission to break the law so their vision of America would be the one hoisted on the rest of us. I want to hit some highlights in the story, but I need to set the stage on what happened after 9-11 to our surveillance practices. I have done many posts on this matter since it broke and it was clear the NY Times and their media allies were dead wrong about what was happening. For an extensive review on what happened please go here and here. […]