Thursday, February 09, 2006

FISA Judges Thought NSA Spying Program Was Illegal

Too bad this story by Carol Leonnig in the Washington Post didn't break before Abu Gonzalez gave his P.R. talk to the Senate Judiciary committee earlier in the week:

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.

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.

James A. Baker, the counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review, discovered in 2004 that the government's failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.

Yet another problem in a 2005 warrant application prompted Kollar-Kotelly to issue a stern order to government lawyers to create a better firewall or face more difficulty obtaining warrants.

The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which Baker, a top intelligence expert at Justice, shared their reservations and aided the judges.

Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

Okay, so let me get this straight:

The two FISA court judges who had been briefed on the NSA domestic spying program thought it was unconstitutional and wanted their courts to be protected from "tainted evidence" obtained illegally by the NSA and used to file for FISA warrants.

And the top intelligence expert at Justice, James A. Baker, a career lawyer and not a political hack, also worried about the legality of the domestic spying program and the integrity of the FISA court.

You would think if the administration knew that the top FISA judges thought the program was unconstitutional and the top Justice department intelligence expert was worried that evidence obtained through the program was problematic at best and tainted at worse, they would have sought to change the law so that the domestic NSA spying program could operate under the rule of law.

But nope. As we learned from Glenn Greenwald at Unclaimed Territory, when Mike DeWine (R-Ohio) offered to sponsor legislation to change the FISA law in 2002, the administration refused.

For some reason, they wanted the domestic NSA spying program to operate outside the law.

Which still makes no sense to me, but more on that later.

First, let's get to how Abu Gonzales lied to the members of the Senate Judiciary committee on Monday when he testified about the program. Again, Leonnig in the Post:

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.

No wonder Arlen Specter didn't want to swear Abu in before the committee. Karl Rove or somebody else at the White House must have given Specter the heads-up that Abu was going to be perjuring himself so lay off of the swearing-in thing.

No matter. Making false statements before Congress is still felonious and Abu is still responsible for the lies he told.

If former A.G. John Ashcroft and former NSA head Michael Hayden didn't think the NSA domestic spying program couldn't meet the FISA court's probable-cause requirement, why was Abu telling the members of the Judiciary committee that the goverment doesn't listen to anybody's calls unless the government has a "reasonable belief" (other words for "probable cause," according to Gonzales) that he or she is tied to terrorists?

Probably cuz' Abu Gonzales is a lying, spinning, partisan hack and not an independent attorney general.

Again, no matter - John Mitchell discovered that being A.G. doesn't put you above the law.

And now what about what the preznit has said about the domestic spying program? What do the FISA court judges think about that? Again, Leonnig in the Post:

Several FISA judges said they also remain puzzled by Bush's assertion that the court was not "agile" or "nimble" enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court's actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.

On Sept. 12, Bush asked new FBI Director Robert S. Mueller III in a Cabinet meeting whether it was safe for commercial air traffic to resume, according to senior government officials. Mueller had to acknowledge he could not give a reliable assessment.

Mueller and Justice officials went to Lamberth, who agreed that day to expedited procedures to issue FISA warrants for eavesdropping, a government official said.

The requirement for detailed paperwork was greatly eased, allowing the NSA to begin eavesdropping the next day on anyone suspected of a link to al Qaeda, every person who had ever been a member or supporter of militant Islamic groups, and everyone ever linked to a terrorist watch list in the United States or abroad, the official said.

In March 2002, the FBI and Pakistani police arrested Abu Zubaida, then the third-ranking al Qaeda operative, in Pakistan. When agents found Zubaida's laptop computer, a senior law enforcement source said, they discovered that the vast majority of people he had been communicating with were being monitored under FISA warrants or international spying efforts.

"Finally, we got some comfort" that surveillance efforts were working, said a government official familiar with Zubaida's arrest.

Gee, you mean to say the FISA court warrants worked in the Zubaida case?

And you mean to say that the FISA court judges were willing to ease paperwork rules so that obtaining warrants from the court wouldn't be so cumbersome.

Gosh, but the preznit says the system is too cumbersome and there's too much paperwork.

Funny how that turns out not be true.

I guess the preznit is a big a lying, spinning partisan hack as his attorney general.

So why is the administration so adamant about using this program, so stubborn about not going to Congress to change the law, and so weasly and sly about giving out details about the program?

According to David Broder of the Washington Post (no partisan gunslinger, to steal a phrase from Robert Novak), it's because they want to expand presidential power and wage a war without Congressional oversight:

Gonzales, in his testimony, made an effective rhetorical point by citing examples going back to Washington, Lincoln, Wilson and Franklin D. Roosevelt of presidents ordering interception of wartime communications -- on their own authority. But as several senators pointed out, those actions all came before the Supreme Court applied the Fourth Amendment ban on "unreasonable searches" to telephone calls and before Congress in 1978 responded to the scandals of secret FBI wiretapping by enacting the Foreign Intelligence Surveillance Act (FISA), declaring such intercepts illegal except as approved by a specially constituted court.

Gonzales argued that the FISA process is too slow and cumbersome to cope with al Qaeda, but he was noncommittal or chilly to the many suggestions that the administration ask Congress for changes that would facilitate its use. When Brownback pointed out that after Sept. 11, Congress had extended the "grace period" for the government coming back to the FISA court for retroactive authorization of a wiretap from 24 hours to 72 hours and asked Gonzales whether he would like an even longer time, he replied, "It's hard to say" whether that would help.

The obduracy of the administration in continuing to refuse such open invitations to seek a clear statutory authority for this electronic monitoring is almost impossible to understand -- unless Bush and Vice President Cheney are simply trying to establish the precedent that they can wage this war on terrorism without any recourse to Congress.

Broder notes how members of both parties are concerned by the administration's abuse of power here:

No member of the Senate is more conservative than Sam Brownback of Kansas -- a loyal Republican, an ardent opponent of abortion and, not coincidentally, a presidential hopeful for 2008.

As a member of the Judiciary Committee, he has supported President Bush on every one of his court appointments. He is not one to find fault with the administration.

And that is why the misgivings he expressed Monday about the surveillance policies Bush has employed in the war on terrorism are so striking. Along with three other Republicans and all eight of the committee Democrats, Brownback emerged as part of a potential majority that could insist that Bush come back to Congress for authority to continue the wiretaps -- but under court supervision.

In questioning Attorney General Alberto Gonzales, Brownback said, "It strikes me that we're going to be in this war on terrorism possibly for decades . . . [and] to have another set of eyes also looking at this surveillance technique is an important thing in maintaining the public's support for this."

What Brownback put in gentle terms is exactly the issue that clearly troubled all but six of the 18 senators in the hearing -- the absence of any external checks on the secret wiretapping the president ordered after the Sept. 11, 2001, attacks.


Every Democrat on the committee signaled in the hearing a readiness to make needed adjustments in the FISA statute, as Congress has done five times since 2001 to provide more flexibility. The Democrats clearly had heeded Karl Rove's recent speech to the Republican National Committee, signaling an intention to tag them -- once again -- in the 2006 campaign as being soft on terrorism.

They went out of their way to avoid that charge, with Ted Kennedy even applying some reverse English to the argument, by suggesting that al Qaeda suspects might beat the rap in court by their lawyers' successfully challenging evidence obtained through surveillance conducted under questionable legal authority.

And the authority Bush is using is, in the judgment of Republicans as well as Democrats, highly questionable. Lindsey Graham of South Carolina, a military lawyer before he came to Congress, said that when he voted to authorize the use of force against the perpetrators of the Sept. 11 attacks, "I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche."

As for the administration's contention that Bush has "inherent power" as chief executive to order warrantless wiretaps, Graham said, "Its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out. It deals the courts out."

With two other Republicans, Chairman Arlen Specter of Pennsylvania and Mike DeWine of Ohio, and all the Democrats agreeing with Graham's view, the president has been given a clear signal to get off his high horse and come to Congress for statutory authority and court supervision of the surveillance program.

And of course Republican Heather Wilson, whose subcommittee oversees the National Security Agency (and thus its spying programs) called for a full Congressional inquiry into the administration's domestic spying program.

And James Sensenbrenner, Republican chairmen of the House Judiciary committee has issued 51 questions about the domestic spying program to Abu Gonzales, demanding answers about the program.

Specter, Graham, DeWine, Brownback, Wilson, Sensenbrenner - all Republicans - are troubled by the program and believe it to be illegal.

So do two FISA court judges.

So did the intelligence expert at the Justice department.

David Broder, the "Dean" of Washington conventional wisdom, seems offended by the program and the administarion's actions and wants the Congress to reassert itself.

I guess the Ed henrys and Norah O'Donnell's of the world won't be able to turn this into a partisan "Repubs vs. Dems" fight anymore.

There are simply too many people in both parties who are concerned that Bush has put himself above the law by insisting upon using this prgram without changing the current FISA law.

Now it's time for all of the people concerned to put country above party and conduct fair and full investigations into this issue.

Which means putting the officials they haul before Congress under oath.

Especially Abu Gonzales.

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