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Saturday, May 25, 2002

St. Lukes Institute Has Problems

Tony Adragna
The Silver Spring, MD institute that treats priests for pedophilia, and other sex-related dysfunctions, may lose its accreditation. The State of Maryland cites a " level of deficiencies was of such scope and gravity as to pose a serious and immediate threat to patient safety."

I think that the institute should be closed, or moved, regardless of whether those deficiencies are corrected.

Let me explain...

When I lived in Langley Park, MD, we often drove up New Hampshire Avenue to an apartment complex where some friends lived. Every time we made that trip, I noticed this very Catholic looking institution that I assumed was an academic "institute" for priests. I went along believing that assumption, until Fr. Rossetti starting making the rounds of news shows in re the current scandal.

With this new knowlege of exactly what that institution is, I started asking myself some questions -- like, why didn't I know? Do the residents of that neighborhood know? There are apartment complexes in the neighborhood -- directly across New Hamshire Ave, and directly across Metzerott -- full of families and children.

Even more troubling, is an elementary school in walking distance of St. Lukes.

How well secured is the facility? What happens if one of the "priests" wanders away? [my housemate, who has worked in these types of facilities for years, tells me that it's not an uncommon event]

I'm not worried about the "safety" of the priests -- I'm concerned about the safety of our children!

QP Saturday

Will Vehrs
We briefly turn away from FISA and "The Man Without Qualities" to ponder the essential question, "What's up with Dodd?"

Perhaps it was our inability to "connect" with Legos, or perhaps it was our inability to connect with Dodd's capricious whimsy, but for whatever reason, posters from The Refuge did not fare well in the latest Caption Contest. "Rags," JulieC, Dan, and even yours truly were in there, but apparently we didn't realize that the streetwalker motif was destined to carry the day. If that was the program, then Ray's entry certainly had the right stuff.

Maybe we'll do better with Ronald McDonald, since we cleaned up with peeing people and dressed up dogs.

UPDATE: Maybe I shouldn't check the contest so early in the morning. I totally forgot to welcome Mommabear and comment on her excellent entry. Someday, everyone in The Refuge will enter the Caption Contest.

I hope everyone will pause this weekend and reflect on those who gave their lives defending our way of life. Memorial Day's meaning is much clearer this year as we battle another threat to our nation and see military personnel making the ultimate sacrifice.

Friday, May 24, 2002

Did We Not Have The Tools?

Tony Adragna
I said "hint: FISA...", because FISA (as amended) is in fact still the law. Does it restrict the Intelligence Community? Yes, but not unreasonably so. More importantly, though, establishment of the FISA court actually made it easier for the FBI to legally conduct domestic surveillance, and codified the government's authority to conduct domestic surveillance so long as it meets a lawful purpose -- that is, FISA was a grant of authority, with limits.

Mr. "Musil" doesn't like those limits -- he blames "liberal Democrats" for those limits, citing concerns over "civil liberties." What he conspicuously fails to note are the very real abuses of Constitutional protections prior to FISA -- you know, a little matter of the Bill of Rights.

Man Without Qualities insists that USA-PATRIOT was needed to "fix" FISA. Problem is that with some exceptions -- amendments taking into account cell phones & computers; being able to tap a "person" rather than a "number"; sharing of grand jury information (amendments with which I agree with some reservation) -- the amendments to Title 18 and Title 50 really don't allow anything relevant to "international terrorism" that wasn't allowed prior to September 11.

Cooperation? Let's look again at how Mr. Reagan put FISA into effect in Executive Order 12333
1.14 The Federal Bureau of Investigation. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the Director of the FBI shall:

(a) Within the United States conduct counterintelligence and coordinate counterintelligence activities of other agencies within the Intelligence Community. When a counterintelligence activity of the FBI involves military or civilian personnel of the Department of Defense, the FBI shall coordinate with the Department of Defense;

(b) Conduct counterintelligence activities outside the United States in coordination with the CIA as required by procedures agreed upon by the Director of Central Intelligence and the Attorney General;

(c) Conduct within the United States, when requested by officials of the Intelligence Community designated by the President, activities undertaken to collect foreign intelligence or support foreign intelligence collection requirements of other agencies within the Intelligence Community, or, when requested by the Director of the National Security Agency, to support the communications security activities of the United States Government;

(d) Produce and disseminate foreign intelligence and counterintelligence; and

(e) Carry out or contract for research, development and procurement of technical systems and devices relating to the functions authorized above.
Not only was cooperation allowed, it was required -- at least that's what "shall" means any other time it's used. At Section 2.3 of the Order there is authority to collect information on "U.S. Persons":
2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:

(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation
And at Section 2.6 there is more authoriiy to cooperate:
2.6 Assistance to Law Enforcement Authorities. Agencies within the Intelligence Community are authorized to:

(b) Unless otherwise precluded by law or this Order, participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities...
That Order has not been revoked, so what new authority was needed?

Might it be that the problem wasn't the law? Could it be that the problems in our intelligence community have more to do with the nature of bureaucracies.

Let's examine the case of Zac M. -- the 20th Highjacker -- for clues about how people are the worst enemies of intelligence collection, collation, and dissemination.

As I noted on Monday last:
It looks to me like what went wrong -- at the FBI, anyway -- is something not unknown in the workings of large institutions: somebody saw something that appeared to be significant, then passed it up the line, where it was promptly set aside by somebody to whom it appeared to be insignificant
And guess what -- that's exactly what happened.[I don't know how he reaches this conclusion, but Man Without Qualities cites this story as a "further report of how FISA paralysed the FBI" -- the report doesn't say that. The lede reads, "Minneapolis FBI agents investigating terror suspect Zacarias Moussaoui last August were severely hampered by officials at FBI headquarters, who resisted seeking search warrants and admonished agents for seeking help from the CIA" -- we'll get to another example, below, of how people at DoJ's Office of Intelligence Policy and Review can really screw the pooch]

We had the memo from Phoenix, Zac M. in custody, warnings about highjackings - we had intel. What we lacked wasn't the ability to collect data:
In her classified 13-page letter, which includes detailed footnotes, Rowley said Minneapolis investigators had significant evidence of Moussaoui's possible ties to terrorists, including corroboration from a foreign source that Moussaoui posed a major threat, sources said.
If the source is correct, then we had everything we needed to obtain a FISA warrant to search Zac M.'s computer (authority for physical searches under FISA was added in '98 -- supported by that other "liberal Democrat-in-chief" Bill Clinton).

Why didn't the FBI seek a FISA warrant? Well, first of all, the folks at 10th and Penn NW didn't seem to be particularly interested in following up on the intel coming in from the field, but there's something else going on. An instructive precursor is the Wen Ho Lee case. In August 1999 the U.S. Senate Republican Policy Committee noted:
In the investigation at Los Alamos, the FBI tried to get a FISA order for surveillance or a physical search of Wen-Ho Lee, a scientist at Los Alamos, but the Department of Justice (DoJ) refused to go to a FISC judge because the Department did not believe that the FBI's evidence was sufficient to meet FISA's statutory requirements for "United States persons". The Thompson-Lieberman statement details the wrangling between the FBI and DoJ's Office of Intelligence Policy and Review (OIPR) and lists (on pages 14-17) 18 paragraphs of allegations that the FBI submitted to OIPR to show that there was, indeed, "probable cause" to apply for an order. DoJ's failure to act on that information is what baffles Senators Thompson and Lieberman.

The Senators are not the only persons who are baffled. Their statement says that FBI Director Louis Freeh believed there was probable cause. The President's Foreign Intelligence Advisory Board (PFIAB) said "the Department of Justice may be applying the FISA in a manner that is too restrictive, particularly in light of the evolution of a very sophisticated counterintelligence threat and the ongoing revolution in information systems." The chairman of the PFIAB, former Senator Warren Rudman, called DoJ's reading of FISA "one of the most baffling" parts of the Chinese espionage story. Energy Secretary Bill Richardson seems to agree with these conclusions. Thompson-Lieberman Statement at 20 n. 78.

When the Department of Justice refuses to forward a request to the Foreign Intelligence Surveillance Court even when the FBI has compiled the kind of facts that were arrayed in this case, then one can't help but wonder if FISA's "sound balance" has come undone.
Here it is again -- "allegations [...] submitted", "probable cause", and "failure to act."

Of course, the Lee case was a little more complicated because of his status as a "United States Person", but Zac M. was in jail on an immigration violation -- the standard that the FBI had to meet in order to obtain a FISA warrant was by definition much lower.

The FBI had the tools, but DoJ simply didn't allow the tools to be used. That's not a problem presented by the law -- it's a problem presented by the bureaucarcy. The fix to that problem isn't new legislation -- it's faithful application of existing legislation. If you have a dysfunctional bureaucracy, the way to make it functional isn't by giving it new authority.

I'll put it more colorfully: If you have a person that can't find his own ass with both hands, a flashlight, and a roadmap, the answer isn't to put him into a room full of asses and praying that he just happens to stumble into his own. Such a person is useless, and needs to get the hell out of the way.

Now, Mr. "Musil" sees a need to restore the "balance." I agree, and advert to the PFIAB (at the time they were Clinton's folks) statement above -- "the Department of Justice may be applying the FISA in a manner that is too restrictive, particularly in light of the evolution of a very sophisticated counterintelligence threat and the ongoing revolution in information systems."[emphasis added] Where I disagree is his belief that FISA was too restrictive. His constant reference to "civil liberties" and "liberal Democrats" as cause for the imbalance is ironic -- FISA as originally enacted actualy did something that civil libertarians still scream about: allowed searches without evidence that a crime has been or is about to be committed.

And that's where my disagreement with Fareed Zakaria begins. Fareed argues on a false premise when he says:
The FBI is a law-enforcement agency, not an intelligence outfit. To begin a massive operation, a crime needs to have been committed

To have properly analyzed and investigated the leads that pointed to 9-11, the FBI would have had to have been a different organization, a kind of domestic intelligence agency, focused not simply on investigation after the fact but pre-emption and prevention. “The paradox is that once someone enters the United States, they become invisible, shielded by all our laws and restraints,” explains Philip Zelikow, director of the University of Virginia’s Miller Center. “The National Security Agency and the CIA can keep tabs on people around the world-but not here. We just caught a terrorist in Pakistan. Had he been in America, he’d have been safe.”

For the purpose of FISA, the FBI is an "intelligence outfit." Further, under FISA there is no need to wait for a "crime to be committed" -- there needn't even be a crime about to be committed. That's because FISA lightened the burden for obtaining a warrant -- you only need to show "probable cause" [not "proof"] that the target is an agent of some foreign group. And that burden isn't very hard to meet -- 12,178 warrants approved, 1 denied.

"To have properly analyzed and investigated the leads that pointed to 9-11" all the FBI had to do was act on the information coming in from the field (as noted above).

The tools didn't exist? - Wrong, they're at statute and executive order.

Nobody connected the dots? - Wrong, the agent in Phoenix and the agents in Minneapolis did "connect the dots".

The government did everything it could have under existing law? We'll have to wait for Director Mueller to get his new story together -- his response to the Rowley letter: it's being investigated.

[p.s.: my absence yesterday wasn't due to any shocking blow deliverd by Mr. Musil -- I was having dinner with a source who used to work on The Hill -- that's who tipped me to the piece from the Senate Republican Policy Committee]

Wednesday, May 22, 2002

Still Missing The Point...

Tony Adragna
Mr. "Musil" says that I "packpeddled' in the post below, and accuses me of failing my own test.

Nothing can be further from the truth. I stand by my original comment, and will amplify here.

What I took exception with was this line:
Stephen Jay Gould, the Harvard professor of geology who wrote popular books and got involved in all kinds of political things died today.
Why did I take exception?

Not simply because he wasn't just a "professor of geology", but because that label does a dishonor to his legacy -- he was "more widely regarded as a paleontologist [which is the field in which he earned his doctorate] and professor of zoology" Most of Prof. Gould's research work was in invertabrate paleontology. In fact, since 1982 he had been the Alexander Agassiz Professor of Zoology -- that is The "academic position" that Prof. Gould held [hint: his office was at the Museum of Comparative Zoology], notwithstanding the fact that he held other positions at the university.

The American Association For The Advancement Of Science, whose board Prof. Gould chaired, had no problem getting it right.

It's his academic work in evolutionary theory for which he will be best remembered, and that brings me to the second half of the problematic passage - "political things." What are these "political things" -- well, he's was most noted for his repeated clashes with creationists. But it wasn't "politics" that he was about in those clashes -- it was science.

Backpeddling? No, standing firm, just as Prof. Gould would do.

Being indecent? Far from it -- Prof. Gould would insist on no less than honesty and accuracy, and my linking his name to the broader context while criticisizing some particularly dishonest and inaccurate rhetoric does more honor to Prof. Gould than does Mr. "Musil's" simple acknowledgement of Prof. Gould's death.

Next up: How both Mr. "Musil" and Fareed Zakaria are wrong about the FBI not having the legal tools it needed prior to Sep. 11, and wrong about the ability of the FBI and CIA to cooperate (Hint: FISA, signed in '78 by the "liberal Democrat-in-Chief" Carter).

I'm "dismissive"?

Tony Adragna
Man Without Qualities says that I've treated him indecently, and dismissed this arguments.

Actually, my comments below were purposefull on both accounts, and he dismisses my comments.

The point that I was making in re his pointing the finger at "liberal Democrats" is that a full review of the record shows that it's not only Democrats who favour restrictions on domestic intelligence gathering - his view is very one sided.

Just as a full review of Gould's bio would show that he was not only a professor of geology, and was more widely regarded as a paleontologist and professor of zoology.

Let's not be one-sided...

Monday, May 20, 2002

It's All The "liberal Democrats'" Fault?

How "Man Without Qualities'" argument is without merit
Tony Adragna
Man Without Qualities seems to want to pin the blame for everything wrong with our intelligence services on "liberal Democrats", and Mr. Clinton in specific. Specifically, he notes limitations placed on our intelligence services, both in how they may operate domestically and internationally.

Wanna know who started this? Musil would know, if he had bothered to do a little research (instead of simply relying on an opinion column) -- it was Gerald R. Ford.

Read Ford's 1976 Executive Order 11905: United States Foreign Intelligence Activities

Also, that great conservative icon Ronald Reagan signed on to basically the same restrictions. Read Reagan's Executive Order 12333.

'Twas Clinton who in '98 made a "presidential finding" that going after terrorists with covert action, even killing terrorists covertly, doesn't violate the prohibition against assassination. Clinton so authorized action aganst bin Laden, and Bush reauthorized on that same finding as soon as he took office.

Of course, Musil wants to argue that the problem goes back as far as the National Security Act of 1947. What Musil fails to note is that the '47 act was not an attempt to restrict the CIA from activities that it had previously been performing. Rather, the '47 act coincides with the CIA's founding.

Musil's verbose attempt to prove his point actually proves nothing.

Ted Barlow will hopefully have a more comprehensive response to Musil.

I'd give Musil's "fact checking" abilities some credit, and simply disagree with his analysis, but he can't even get Stephen Jay Gould's field of study correct, though he presumably read the article he linked to....

p.s.: Don't even get me started on how Mr. Reagan's response to terrorism -- beating a hasty retreat from Beirut after the Marines were bombed in their barracks, and paying off, with weapons, the sponsors of MidEast hostage takers, making the activity lucrative for them and creating a "hostage mill" -- was in ways far more problematic than Clinton's approach...

The Approach to Blame

A two-way street congested with political traffic
Tony Adragna
What can I say about the current comedy playing out on the political stage? I'll reiterate what I iterated on January 2, 2001:
[...]now everybody's carping on [Clinton's] "failure" to deal with bin Laden - as if anybody else would've done anything differently prior to Sep 11. In fact, prior to Sep 11th Mr. Bush was pursuing bin Laden on the same track that Mr. Clinton was on.
The point I was making then, and I'm echoing now, is that neither Clinton nore Bush are at fault

There certainly were failures, but they weren't individual failings. Rather, the failings evidence some systemic problems -- a problem inherent to bureaucracies and a problem inherent to democracies.

I think that the failure of the political establishment -- not just the President and his staff, but Congressional leadership as well -- to fully grasp the scope of the threat is a function of "what they didn't know", and not the hypothetical "what they should've known." There's much that the President and Congress should've known, but that they didn't know is the fault of the agencies responsible for collecting, collating, and diseminating information -- the FBI and CIA. It's on those agencies that any investigation must focus, and there must be an investigation -- if for no other reason but than to find out what went wrong so we can try to fix it.

It looks to me like what went wrong -- at the FBI, anyway -- is something not unknown in the workings of large institutions: somebody saw something that appeared to be significant, then passed it up the line, where it was promptly set aside by somebody to whom it appeared to be insignificant. Why that happened, what role it played in allowing the attacks of September 11th to go forward (or, how properly handling that info might have prevented the attacks), and how to keep it from happening again, are all questions that we ought rightly seek answers to.

The questions that seek an answer to why we did things the way we did vis a vis terrorism in general and Osama bin Laden specifically, prior to September 11th, and attempts to lay blame on either Clinton or Bush, are all lacking a certain perspective -- how we operate as a democracy. It's easy in hindsight to say what we ought to have done, and just as easy to assert that had we known, the we would've done differently. I'm not buying that -- it's too easy.

Truth is, much of what we've done since September 11th was just as "unthinkable" as the thought that terrorists would use commercial jet aircraft as guided missiles to bring down the World Trade Center -- it wasn't unthinkable at all. We may have been able to prevent the attacks by vigorously pursuing the leads we had, and there the fault rests with the agencies. But, the other activities -- increasing scrutiny on Arab-looking men, or going to war against terrorism much sooner -- are policy decisions made by politicians acting in the context of an open democratic society.

Those policy paths we've gone down since September 11th are roads that no U.S. administration or Congress would have gone down prior to September 11th, and any attempt at comparison is really a juxtaposition. The use of this juxtaposition in argument is a political rhetoric, and does disservice to the genuine search for what went wrong and how to fix the problem.

Addendum: Mr. Novak gets it just right:
Revelations that shook the nation's capital last week provided dispirited Democratic partisans with ammunition for bashing George W. Bush. All that really was exposed, however, is a failed government system of analyzing intelligence that transcends party politics and shortcomings of the current administration. It also revealed the FBI's lack of gratitude.[emphasis added]
Of course, the Bushes are twice sandbagged -- the agencies screwed the pooch in the first instance, and the "leaks" conspicuously appear to be an attempt by the ungrateful ones to deflect back at Mr. Bush. Knowing how dearly Mr. Bush values loyalty -- almost to the point of fidelity -- I don't need to imagine how much the revelations hurt.

But, as Bob says, and only in context of the political fallout:
In a sense, Bush and his team have themselves to blame. Immediately after Sept. 11, Sen. Robert Torricelli (D-N.J.) called for a ''Pearl Harbor-type'' investigation by a citizen's commission. The White House stifled this baby in its crib, citing protests from the FBI and CIA that they had no time to cope with an investigative commission. Actually, the attitude fits this administration's passion for secrecy.

Had Torricelli prevailed, a broad-based investigation launched months ago might have revealed in orderly fashion what is now being leaked piecemeal--fueling conspiracy theories and aiding irresponsible Democratic members of Congress.
Or, as Scott Shuger said in another context, "[...] if the government has a right to secrecy in these matters, it doesn't have a right to stupidity." I should add, if the Congress has a right to investigate, it doesn't have a right to stupidity.

I'll not fault the manner in which the administration has prosecuted the war, but I'll go along with a label in application to how this war has played out on the domestic political front -- both parties have engaged in stupidity.

Sunday, May 19, 2002

Shadow Government Leader Appears on Sunday Talk Shows

Will Vehrs
TV Punditwatch is up, analyzing Vice-President's Cheney's appearances today. There's also some discussion of tackiness, George Will's name dropping, and Cokie Roberts' warning to George W. Bush.