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Independent Gay Forum


Town Hall: Conservative News and Information - The Conservative Movement Starts Here

The Big Boys Come Out To Play

Tony Adragna

Got an interesting email on my exchange with Mickey Kaus:

Hello. I just read your May 28 posting on Mickey Kaus re FISA, Mickey's response on Slate, and the Leahy statement that you cited. Unless I have missed something, Mickey has won the argument on a knockout.

By the way, it means very little that Rowley, in asserting that FBIHQ blew it, complains not about the statute but about the HQ interpretation of the statute and evidence. It would hardly advance her cause to say that even if FBIHQ was right that the evidence didn't satisfy the statute, HQ should have sought a warrant anyway because the statute is too stringent.

And your statement that everybody now agrees there was probable cause is inconsistent with my impression that FBIHQ STILL maintains (rightly or wrongly) that probable cause was lacking before 9/11.

Will you have a rejoinder?

Sincerely, Stuart Taylor (columnist at National Journal)

I sent Mr. Taylor a fairly comprehensive reply, including links to seperate entries that develop my argument. Let me summarize:

- Yes, Mr. Taylor, you did "miss something": the citation I sent Mickey came from "Man Without Qualitites", and was used by MWQ to support the contention that the FBIHQ and DoJ lawyers applied the law correctly in the Wen Ho Lee case, which was counter to my citation of the Thompson and Lieberman statements that the FBIHQ and DoJ screwed up. That's OK, Mickey missed it, too.

- I don't see how "Mickey has won the argument on a knockout": he never dealt with the substance of my argument, prefering to spin it into a defense of Leahy. He built a strawman, then knocked it down. But, he hasn't proven me wrong.

- Rowley doesn't simply assert that "FBIHQ blew it": she asserts that she met the statute's requirement, and she rejects any notion that "FBIHQ was right". She asserts that the evidence supporting "probable cause" prior to September 11th was exactly the same evidence that existed post-September 11th. The only difference being that "by the time the actual warrant was obtained, suspected terrorists were known to have highjacked planes which they then deliberately crashed into the World Trade Center and the Pentagon." That warrant was a "criminal search warrant", which needed to pass a higher test of "probable cause", not a "FISA warrant".

- I've heard Director Mueller defend FBIHQ's pre-September 11th "probable cause" decision on the request from Minneapolis. There's a problem with that defense. Didn't the agents in Minneapolis identify Moussaoui as a terrorist threat, and have evidence that he was connected to Osama bin Laden (whether or not FBIHQ agreed)? Hasn't Moussaoui been charged as a conspirator in acts of terrorism? And doesn't the government argue that the conspiracy was an al Qaeda operation? If the answers to these questions are "yes", and I believe that everybody agrees, then there's an implicit admission that the agents in Minneapolis were correct before the fact.

They can defend the decision based on an argument that they couldn't see "probable cause" in the requset from Minneapolis -- it couldn't be established de jure to FBIHQ's satisfaction -- and that is exactly what they are arguing: defending a judgement call.. But I haven't heard anybody since September 11th deny that there was in fact "probable cause" prior to September 11th. Indeed, the conspiracy charges run counter to such an assertion.

That's my rejoinder.

[ I know that I'm sounding like a broken record -- I really hate repeating myself, but some people just aren't paying attention]

posted by Anonymous at 6:41 PM | permalink | "The Refuge"

What Did Senator Leahy Say?

Tony Adragna

Several people have attempted to spin my citation of Senator Leahy on the Counterintelligence Reform Act of 2000 into a "defense" of Senator Leahy, a spin which a read of my May 27 comments should adequately disprove. What I reject is the notion that a "legislative fix" to the problems at FBI and DoJ, and between the several agencies that handle "Foreign Intelligence" & "Foreign Counter-Intelligence", is in order. My advert to Leahy's statement is correct in context -- he did support legislation that was supposed to fix the problem!. From the statement:

I have joined as a cosponsor of the Counterintelligence Reform Act of 2000, S. 2089, and look forward to working with my colleagues, Senators Grassley, Specter, and Torricelli, on making any improvements and refinements to the legislation which may become apparent as we hear from expert witnesses both today and at future hearings. This is an important issue with serious implications for the careful balance we have struck between the need to protect our national security and our obligation to defend the constitutional rights of American citizens.

This legislation was crafted in response to perceived problems in the investigation of nuclear physicist Wen Ho Lee. Our review of that matter is far from complete and, in view of the pending criminal case, must be put in abeyance to avoid any prejudice to the parties or suggest political influence on the proceedings. Based on the Subcommittee's review to date, however, I do not share the views of some of my colleagues who have harshly criticized the Justice Department's handling of this matter. Notwithstanding my disagreement, as explained below, with those criticisms of the Justice Department, I support this legislation as a constructive step towards improving the coordination and effectiveness of our counterintelligence efforts. Senators Grassley, Specter and Torricelli have provided constructive leadership in crafting this bill and bringing together Members who may disagree about the conclusions to be drawn from the underlying facts of the Wen Ho

He goes on for 20 paragraphs to explain his "disagreement" with other Members who criticized the FBI's handling of the case. Then he finally returns to his support for the legislation:

The Counterintelligence Reform Act of 2000 correctly avoids changing this governing probable cause standard. Instead, the bill simply makes clear what is already the case – that a judge can consider evidence of past activities if they are relevant to a finding that the target currently "engages" in suspicious behavior. Indeed, the problem in the Lee case was not any failure to consider evidence of past acts. Rather, it was that the evidence of past acts presented regarding Lee's connections to Taiwan did not persuasively bear on whether Lee, in 1997, was engaging in clandestine intelligence gathering activities for another country, China.

A particularly inane amendment to the law, since it is "already the case", and did not "bear on" the Wen Ho Lee case.

The next three paragraphs are an admission that "some reforms are needed", and a recitation of "already taken important steps" by the FBI and DoJ, "a policy under which OIPR attorneys will work directly with FBI field offices to develop probable cause and will maintain relationships with investigating agents", and advice from the A.G. that "she has instituted new procedures within DOJ to ensure that she is personally advised if a FISA application is denied or if there is disagreement with the FBI."

He then goes on for three paragrpahs to take issue not with the legislation's intent to improve "coordination", but simply to argue that "certain of these new requirements will be unduly burdensome on our high-ranking officials due to the clauses that prevent the delegation of certain duties." That is, if we can find a way to improve coordination without "imposing statutory requirements personally on the Attorney General and others", then he'd be perfectly happy. But is he unhappy? Of course not:

I also support provisions in this bill that require information sharing and consultation between intelligence agencies, so that counterintelligence investigations will be coordinated more effectively in the future. In an area of such national importance, it is critical that our law enforcement and intelligence agencies work together as efficiently and cooperatively as possible. Certain provisions of this bill will facilitate this result.

In addition, Section 5 of the bill would require the adoption of regulations to govern when and under what circumstances information secured pursuant to FISA authority "shall be disclosed for law enforcement purposes." I welcome attention to this important matter, since OIPR attorneys had concerns in April 1999 about the FBI efforts to use the FISA secret search and surveillance procedures as a proxy for criminal search authority.

Whatever our views about who is responsible for the miscommunications and missteps that marred the Wen Ho Lee investigation, the bill before us today stands on its own merits and I commend Senators Grassley, Specter, and Torricelli for their leadership and hard work in crafting this legislation.

Leahy supported the 2000 Act, as I correctly noted, and I ask again: What good did the legislation do?

Yes, the USA-PATRIOT Act legislated on the ability of the several intelligence agencies to communicate and coordinate, but it wasn't the first act to address that problem with a requirement that they do exactly that. They have always been required to communicate on matters affecting Foreign Intelligence and Foreign Counter Intelligence actvities inside the United States. In fact, Gerald Ford's original Executive Order 11905 required that the Attorney General "coordinate" all FI and FCI activities within the United States. Is the USA-PATRIOT ACT going to be any better at getting the agencies to do what the 2000 Act was supposed to require that they do -- communicate and coordinate?

I'm hoping that the obvious failures of September 11th have been enough to convince the agencies of what they need to do. I'm skeptical of "legislative fixes" [of the USA-PATRIOT Act type]: history proves that they either go too far, or simply don't work at all -- the USA-PATRIOT ACT may be guilty of both failings


posted by Anonymous at 12:08 PM | permalink | "The Refuge"

QP Saturday

Will Vehrs

First it was just "Rags," but now it's Rhonda Roberts, too, jamming me for excessive entries in the Caption Contest. The winners should be happy that I'm padding the numbers ....

Ronald McDonald with a pistol was a great pic. Entrants from The Refuge had a bit of an off-week, especially yours truly. If you think my entries were bad, you should see the ones I withdrew. Thanks, Dodd, for not sticking to some legal mumbo-jumbo, "All entries become the property of Dodd's Amazing Caption Contest, blah, blah, blah."

Hope everyone enjoys their weekend. Be glad you're not Robert Mueller, preparing to face Tim Russert on Meet the Press tomorrow morning.
posted by Will Vehrs at 7:12 AM | permalink | "The Refuge"

How Much More Evidence?

Tony Adragna

Phillipe Richards emails me to say:

And I'll do you the favor of pointing you to Footnote 7, in which Rowley complains that FBI headquarters failed to notify the DOJ's Criminal Division about Moussaoui:

This failure would seem to run clearly afoul of the Attorney General directive contained in the "1995 Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations" which mandatorily require the FBI to notify the Criminal Division when "facts or circumstances are developed" in an FI or FCI investigation "that reasonably indicate that a significant federal crime has been, is being, or may be committed." I believe that Minneapolis agents actually brought this point to FBIHQ's attention on August 22, 2001, but HQ personnel apparently ignored the directive, ostensibly due to their opinion of the lack of probable cause. But the issue of whether HQ personnel deliberately undercut the probable cause can be sidestepped at this point because the Directive does not require probable cause. It requires only a "reasonable indication" which is defined as "substantially lower than probable cause." Given that the Minneapolis Division had accumulated far more than "a mere hunch" (which the directive would deem as insufficient), the information ought to have, at least, been passed on to the "Core Group" created to assess whether the information needed to be further disseminated to the Criminal Division.

Now, would Musil and Kaus thnk "reasonable indication" is a lower or greater standard than "belief" or "reasonable suspicion" ?

That's right - not only did DoJ and FBI not make full use of the statute, but couldn't even get it together in following their own directives. It's even probable that their directives may have been, and may still be, the worst enemy of applying the statutes.

Ok, Director Mueller has announced an FBI Reorganization, and that's likely a good thing if it includes holding people accountable for failures to do their jobs.

I don't know how "Musil" and Kaus would respond to the question. Kaus argues that simply having Moussaoui in custody for a crime -- he was, after all, "out of status" as INS officials [and John Ashcroft] would euphemize -- and that seems reasonable. But, it's a moot point, because the statute doesn't contain an "excessively high standard of 'probable cause'", does treat foreigners differently than U.S. citizens, and allowed a warrantless search of Moussaoui's computer if the A.G. had authorized.

Now, "Musil" claims that the law needs to change because it's impractical, the agents can't work with it, or some other such nonsense. Yes, the argument is nonsense: if people weren't doing their jobs because their jobs are undoable, then "Musil" would have a strong case, but all of the facts point simply to people weren't doing the doable.

Clarification: There seems an internal contradiction in my argument -- first criticizing failure to follow directives, then criticizing directives. They are distinct issues, and I didn't intend to conflate, but they are related issues.

FBIHQ clearly did fail to follow the directive -- had they brought the matter to DoJ's Criminal Division, the request from Minneapolis may have had a different result.

But, there may be a problem with the directive: Was it enough to satisfy the intent of the statute? The statute clearly gives the A.G. authority that would have settled the question, and the circumstance was of such a nature that it really should have been brought to the A.G.'s attention much sooner.

And might there be other directives that -- unlike the one cited by Rowley, which clearly isn't contrary to the statute, but might be insufficient to the need -- actually misconstrue legislative intent? It's not uncommon -- my experience includes much work in helping lawyers prepare cases against agencies where regulations issued by those agencies don't meet the test of "legislative intent".

In either case -- whether the directive was good or bad -- FBIHQ took a route that was clearly contrary to both directive and statute. Even if the directive didn't go far enough, at least following it would have moved the request toward its proper goal.


posted by Anonymous at 3:33 PM | permalink | "The Refuge"

More Evidence of Ineptitude and Obstructionism

Tony Adragna

Bill Herbert at COINTELPRO Tool points to Footnote 6 of the Rowley letter:

Kaus objects to the "agent of a foreign power" requirement entirely, arguing that the standard should apply to any foreigner. But to argue that this requirement was the reason the FBI headquarters counsel refused to pursue a warrant under FISA defies reality, as the Rowley memo shows conclusively:

For example, at one point, the Supervisory Special Agent at FBIHQ posited that the French information could be worthless because it only identified Zacarias Moussaoui by name and he, the SSA, didn't know how many people by that name existed in France. A Minneapolis agent attempted to surmount that problem by quickly phoning the FBI's legal Attache (Legat) in Paris, France, so that a check could be made of the French telephone directories. Although the Legat in France did not have access to all of the French telephone directories, he was able to quickly ascertain that there was only one listed in the Paris directory. It is not known if this sufficiently answered the question, for the SSA continued to find new reasons to stall.

Yup -- I didn't read the footnote, because I thought the body of the letter was clear enough.

I agree with Bill -- the "statutory" argument for what went wrong "defies reality"


posted by Anonymous at 9:23 PM | permalink | "The Refuge"

Those Wrong-headed Liberal Democrats in re Warrantless Searches

Tony Adragna

Again I turn to the U.S. Senate Republican Policy Committee for a case study:

In 1978, in response to new revelations about Executive Branch abuses and to new interpretations by the Judicial Branch, (3) Congress passed and President Carter signed FISA which codified a procedure for obtaining judicial sanction for searches involving foreign agents. (4)

As recently as 1993, however, President Clinton's Attorney General, Janet Reno, authorized a warrantless search of the residence of Aldrich H. Ames, who was at the time an employee of the CIA. (5) That search discovered numerous items (6) that helped put Ames behind bars for life. Ames's treason dealt a hard blow to America and our intelligence services: it compromised numerous operations and sources and may have led to the deaths of 10 persons. (7)

And read Footnote 7:

After the search of the Ames residence, FISA was amended to cover physical searches. Pub. L. 103-359, Title VIII, Oct. 14, 1994, 108 Stat. 3443, 50 U.S.C. §§1821-1828.

In other words, the solution to Mickey and MWQ's problem with the statute vis a vis searching Moussaoui's computer was already addressed.

The absence of statutory authority for warrantless "physical searches" prior to 1994 didn't seem to have an adverse impact on the Clinton administration's ability to conduct a warrantless search -- they did, Ames was tried, convicted, and is serving a life sentence. Tell me about those "Dukakis-like civil-libertarian" again?

It's also worth noting, as we see in Footnote 1, that:

In the only cases directly addressing the legality of warrantless intelligence searches of foreign agents, the courts upheld the legality of the President's order so long as the primary purpose of the investigation was foreign intelligence gathering, United States v. Humphrey, 456 F. Supp. 51 (E.D. Va. 1978), United States v. Truong, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982)

US v. Troung was after FISA, and the Court still upheld the legality of the search.

So, how is it that the statute prevented a search when the Court upholds the legality of warrantless searches irrespective of the statute "so long as the primary purpose of the investigation was foreign intelligence gathering" ?

And, isn't it a counterfactual claim that the statute prevented a search when the statute and an E.O. in fact authorize warrantless searches?

The authority existed, but simply wasn't used -- that's not a problem that you fix by granting new authority.

posted by Anonymous at 8:27 PM | permalink | "The Refuge"

The "liberal Democrat": Redux

Tony Adragna

I didn't notice at the time, but on Tuesday last (May 28,2002) OpinionJournal - Best of the Web Today also took exception with Mickey Kaus singling out "Dukakis-like civil-libertarian[s]" and Senator Leahy:

One problem with this: As our Tom Bray noted way back in October 2000, candidate Bush himself denounced "profiling" of Arabs in an apparent play for the Arab-American vote in Michigan (a state Al Gore carried anyway).

What did Tom Bray note in his OpinionJournal - From the Heartland column? Here's a relevant excerpt:

The AAPAC endorsement wasn't cemented until a few days later. In the second debate Mr. Bush made several points that may have gone over the heads of most Americans but struck home forcefully in places like Dearborn. First, while expressing strong support for Israel in the current crisis, Mr. Bush went out of his way to stress the importance of talking to "moderate" Arab nations like Jordan, Egypt, Saudi Arabia and Kuwait.

Second and even more decisive was Mr. Bush's deft handling of an extended discussion of hate-crime legislation. Mr. Gore placed nearly all of his focus on the need to protect African-Americans, the vast majority of whom are sure to vote Democratic. Mr. Bush, by contrast, went out of his way to add Arab-Americans to the equation. Other forms of racial profiling go on in America, Mr. Bush noted: "Arab-Americans are profiled in what's called secret evidence. People are stopped, and we got to do something about that. My friend, Sen. Spence Abraham, is pushing a law to make sure that . . . Arab-Americans are treated with real respect."

Though the answer conflated two different issues--law-enforcement profiling and the use of secret evidence to deny entry to immigrants suspected of having terrorist ties--the sentiment behind the response drew thunderous applause from Arab-Americans.[emphasis added]

There's some proof there of what I've ever been noting on the "wobbly-watch" front: Mr. Bush hasn't gone soft -- he always was.

But, things get even better for my argument that Clinton-Gore weren't the enemies of national security that some people are wanting to make them out. Bray goes on to note:

In 1996, in the wake of the TWA 800 disaster, President Clinton asked Mr. Gore to chair a White House Commission on Aviation and Security. Although there was no evidence of terrorism in the TWA 800 case, the Gore commission adopted several recommendations for heightened security, including a so-called Computer Assisted Passenger Screening system to weed out possible terrorists. Though officials deny that passengers are profiled according to ethnic group, it's widely believed the criteria used in the screening system have the effect of singling out Arabs and Arab-Americans.

Sen. Abraham claims he himself has been profiled on several occasions--"until his face started to appear in the campaign ads this year," as one aide put it. And there has been a long string of complaints from Arab-Americans about abusive or humiliating treatment by airlines and airports using the system.[emphasis added]

So, we see in the post below that in 1994 a "liberal Democrat" controlled Congress passed legislation amending FISA to allow warrantless searches [ what kinda "Dukakis-like civil-libertarian" would do such a thing?]. Bill Clinton issues an E.O. implementing that legislation. And, now we find that "Mr. Gore either didn't get the word [to reform the airline screening system] or didn't want to raise an issue on which he might be said to have dirty hands [...] Now the profiling issue may come back to bite him where it really hurts--at the polls."

Looks to me like "the profiling issue" is definitely "back to bite", but it's not Mr. Gore that's getting bit!

Addendum: Will Mickey post an "update" informing his readers, as I did in two emails to him, that I wasn't "defending" Leahy? He certainly took note of Mr. "Musil"'s "prosecution" of QuasiPundit, never mind the fact that neither Mickey, nor MWQ have yet to make the case that I'm wrong, and have instead misread (MWQ even misconstructed) my comments to make argument against.

I'll admit that I'm expressing opinion in my writings, but they are opinions supported by fact and law rather than ideology.

posted by Anonymous at 6:33 PM | permalink | "The Refuge"

The Standard of "probable cause"

Tony Adragna

I said that I was done debating Man Without Qualities, but I must respond to this:

In lieu of “probable cause,” Mickey Kaus suggests that the standard to obtain a search warrant for someone not a U.S. citizen should be (i) presence in this country coupled with (ii) a belief that he's involved in some sort of crime; and maybe (iii) being legitimately under arrest. But why should any warrant be required at all? Why should the standard not be a simple, documented reasonable belief by the intelligence services that a non-US citizen is involved in some sort of crime, regardless of whether he is in the country or not.

Actually, the standard under FISA is lower than "a belief that he's involved in some sort of crime." All you need do for "probable cause" to obtain a FISA electronic surveillance warrant is show that:

(A)

the target of the electronic surveillance is a foreign power or an agent of a foreign power; and

(B)

each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power

It's right there at TITLE 50 , CHAPTER 36 , SUBCHAPTER I , Sec. 1804.. That standard was met vis a vis Zacarias Moussaoui - Sec. 1801. defines "foreign power" to include "a group engaged in international terrorism or activities in preparation therefor;" and we knew from the French that Moussaoui was connected to al Qaeda.

The same standard applies at SUBCHAPTER II , Sec. 1823. for making application for a FISC order to conduct "physical searches".

But, guess what - they didn't need to go to FISC to search Moussaoui's computer, becauseSUBCHAPTER II , Sec. 1822. allows "physical searches" without a warrant:

(a) Presidential authorization


(1)

Notwithstanding any other provision of law, the President, acting through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if -

(A)

the Attorney General certifies in writing under oath that -

(i)

the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers (as defined in section 1801(a)(1), (2), or (3) of this title);

(ii)

there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person...

Bill Clinton, that "liberal Democrat", issued Ex. Ord. No. 12949 on Feb. 9, 1995, putting the 1994 amendments to FISA into effect:

By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 (''Act'') (50 U.S.C. 1801, et seq.), as amended by Public Law 103-359 (50 U.S.C. 1822, 1823), and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:


Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.


Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.


Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches:

(a)

Secretary of State;

(b)

Secretary of Defense;

(c)

Director of Central Intelligence;

(d)

Director of the Federal Bureau of Investigation,

(e)

Deputy Secretary of State;

(f)

Deputy Secretary of Defense; and

(g) Deputy Director of Central Intelligence.



None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate.

William J. Clinton

The tools were extant -at law and at executive order.

Now, tell me again how the law needs to change?

Addendum: in a weird twist of argument, I originally-- and still am -- critical of Sen. Leahy's statement in support of the 2000 act. Mr. Musil, however, has "backpedaled" -- he originally cited Leahy's statement in support of his proposition, and now criticizes the Leahy statement, lumping my comments in with Leahy's sentiment.

How disingenuous can the argument get?

posted by Anonymous at 1:16 PM | permalink | "The Refuge"

The "excessively high standard of 'probable cause'..."

Tony Adragna

Um, excuse me, but why do I keep hearing that the reason why the FBI agents in Minneapolis couldn't get a warrant was because FISA set an "excessively high standard of 'probable cause'".

Mickey Kaus says:

Exhibit B: Dukakis-like civil-libertarian concern with the privacy rights of non-citizens produced a statute with what now seems an excessively high standard of "probable cause" the FBI had to meet before it could obtain the Moussaoui search warrant. Why do I suspect that some of the alien-defending, privacy-protecting statements of .. oh, let's say Senator Leahy on this subject might prove embarrassing if publicized today?[bold emphasis Mickey's, italics mine]

I think I know where that's coming from -- the Rowley letter misread. Rowley says

Both of the factors that influenced my thinking are areas arguably in need of improvement: requiring an excessively high standard of probable cause in terrorism cases and getting rid of the "smell test" perception.

But, guess what, Rowley isn't talking about the statute -- she's talking about the US Attorney's Office:

In one of my peripheral roles on the Moussaoui matter, I answered an e-mail message on August 22, 2001, from an attorney at the National Security Law Unit (NSLU). Of course, with (ever important!) 20-20 hindsight, I now wish I had taken more time and care to compose my response. When asked by NSLU for my "assessment of (our) chances of getting a criminal warrant to search Moussaoui's computer", I answered, "Although I think there's a decent chance of being able to get a judge to sign a criminal search warrant, our USAO seems to have an even higher standard much of the time, so rather than risk it, I advised that they should try the other route [...] I thought our United States Attorney's Office, (for a lot of reasons including just to play it safe) in regularly requiring much more than probable cause before approving affidavits, (maybe, if quantified, 75%-80% probability and sometimes even higher),[emphasis added]

As well as the comments not being addressed to the statute, the relevant statute that Rowley would be talking about vis a vis the USAO isn't FISA -- she cited TITLE 18 (Crimes and Criminal Procedure). Her preference was to pursue a FISA warrant -- FISA is TITLE 50 , CHAPTER 36!

On "probable cause", Rowley goes on to say:

The fact is that key FBIHQ personnel [...] continued to, almost inexplicably,5 throw up roadblocks and undermine Minneapolis' by-now desperate efforts to obtain a FISA search warrant, long after the French intelligence service provided its information and probable cause became clear.

There's nothing at all in Rowley's entire letter that makes a claim of failing at meeting the statute's requirement of "probable cause." Indeed, the opposite is true -- everybody now agrees in "20 - 20 hindsight" that there was "probable cause", but:

The problem with chalking this all up to the "20-20 hindsight is perfect" problem, (which I, as all attorneys who have been involved in deadly force training or the defense of various lawsuits are fully appreciative of), is that this is not a case of everyone in the FBI failing to appreciate the potential consequences. It is obvious, from my firsthand knowledge of the events and the detailed documentation that exists, that the agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and his possible co-conspirators even prior to September 11th. Even without knowledge of the Phoenix communication (and any number of other additional intelligence communications that FBIHQ personnel were privy to in their central coordination roles), the Minneapolis agents appreciated the risk. So I think it's very hard for the FBI to offer the "20-20 hindsight" justification for its failure to act! Also intertwined with my reluctance in this case to accept the "20-20 hindsight" rationale is first-hand knowledge that I have of statements made on September 11th, after the first attacks on the World Trade Center had already occurred, made telephonically by the FBI Supervisory Special Agent (SSA) who was the one most involved in the Moussaoui matter and who, up to that point, seemed to have been consistently, almost deliberately thwarting the Minneapolis FBI agents' efforts (see number 5). Even after the attacks had begun, the SSA in question was still attempting to block the search of Moussaoui's computer, characterizing the World Trade Center attacks as a mere coincidence with Misseapolis' prior suspicions about Moussaoui

Again, the problem wasn't statutory, it was bureaucratic

Kaus also takes a potshot at Sen. Leahy, but fails to note Leahy's support for the Counterintelligence Reform Act of 2000, which was supposed to fix the problems that arose in the Wen Ho Lee case..

I agree (as I always have) that people at 10th and Penn and DoJ have problems with their approach to enforcement, but a change in the statute isn't going to fix that problem.

Addendum: For the record, I don't "defend" Sen. Leahy - just read the item below. I merely note that Leahy is a "civil libertarian" who supported amending the statute (FISA) in 2000. Leahy's reason for supporting the 2000 act is tied up in his defense of the application of law in the Wen Ho Lee case: everybody applied the law correctly, ergo, the law must be wrong. So, the law was changed.

And did the problem get fixed?

I think Leahy was wrong then, and Kaus is wrong now. The Thompson-Lieberman report was correct then, and Rowley's letter makes the case stronger.

posted by Anonymous at 11:04 PM | permalink | "The Refuge"

I Can't Be Spun,
No Matter How Hard He Tries

Tony Adragna

Now, Man Without Qualities is spinning me.

Oh, and not just me, but Senator Leahy, too.

1) Sen. Leahy makes clear that he does "not share the views of some of my colleagues who have harshly criticized the Justice Department's handling of this matter. Notwithstanding my disagreement...", and admits that "Members [...] disagree about the conclusions to be drawn from the underlying facts of the Wen Ho Lee investigation." It's what Sen. Leahy thinks, based on his reading of the facts -- nothing more.

Of course, Mr. "Musil" doesn't think it important to note that Sen Leahy is in "disagreement" with his colleagues, preferring to cite the senator's statement as if it's conclusive.

2) The views that Sen. Leahy doesn't share are the ones expressed by Sens. Thompson and Lieberman in a statement after "nearly 13 hours of closed hearings and extensive investigation of the case."

It's also noted that Director Freeh "believed there was probable cause", Chariman of the PFIAB former Sen. Rudman "called DoJ's reading of FISA 'one of the most baffling' parts of the Chinese espionage story", and that "Energy Secretary Bill Richardson seems to agree with these conclusions." I didn't "spin" the U.S. Senate Republican Policy Committee press release -- I simply reproduced their text, and it speaks for itself.

Oh. but Sen. Leahy disagrees in a statement at a committee hearing 7 months later, so Thompson, Lieberman, and everybody else are wrong.

Please...

The THOMPSON STATEMENT and the Statement of Senator Joe Lieberman read like prequels to the Rowley letter [all three cite problems with judgement at OIPR - ultimately, a FISC should have made the call about whether there was "probable cause", but OIPR didn't push the matter]: people at FBI and DoJ screwed up -- seems to me that Sen. Leahy was on the wrong track, and would probably like to rethink his "disagreement".

Lotta good the 2000 act did, by the way...

3) Mr. Musil assumes that my "source" (refered to in the p.s.) is a "Democratic Congressional aide" as if my only friends are Democrats -- never mind the fact that I never called the person an "aide" [he's actually a law librarian], and it's pretty clear from what I said that the person no longer works on The Hill.

I'm through debating Mr. "Musil"...

posted by Anonymous at 9:06 PM | permalink | "The Refuge"

I Remember... I'll Always Remember...

Tony Adragna

Memorial Day has ever been for me a solemn day. Not a day for parades and concerts. Nor for beaches and barbeques. On my caledar, it's a day for cemeteries.

Sure, I've read the history of America at war, and can recite the figures -- 300,000 U.S. deaths in WWII, 30,000 in Korea, another 50,000 in Vietnam -- but nothing brings that sacrifice home to the heart as much as seeing the acres of grave markers at Arlington. Especially at Arlington, where our heroes -- both great men and common soldiers, neither more noble than the other -- have been laid to rest since our Civil War. It's the dead of that war which Memorial Day originally honored, though it was known as Decoration Day then.

Over the near century and a half since the first U.S. soldier was laid to rest at Arlington, the cemetery has expanded -- there has been no shortage of men and women willing to give there all in defence of America and her values. Thank God, there never will be.

I wanted to write something special honoring all those who died last September 11th, but I can't think of anything to say that hasn't already been expressed more eloquently by others. I probably could, except that my mind keeps recalling an earlier Memorial Day.

It was May 25, 1987, and James H. Webb Jr., Secretary of the Navy, said at Arlington National Cemetery, "We pray for permanent peace. And yet we know, even as we pray, that the time given us on this earth has been, at its most optimistic, one of volatility and frequent violence." That sentiment wasn't expressed in the abstract -- you see, on May 17, 1987 we had just lost 37 U.S. Navy sailors in an attack on the U.S.S. Stark:

Doran Bolduc - Lacy, Wash.
Bradley Brown - Calera, Ala.
Jeffrey Calkins - Rickfield Springs, N.Y.
Mark M. Caouette - Fitchburg, Mass.
John Ciletta* - Brigantine, N.J.
Brian Clinefelter - San Bernadino, Calif.
Antonio Daniels - Greenville, S.C.
Christopher DeAngelis* - Dumont, N.J.
James Dunlap - Osceola Mills, Pa.
Steven Erwin* - Troy, Mich.
Jerry Farr - Charleston, S.C.
Vernon Foster - Jacksonville, Fla.
Dexter Grissett - Macon, Ga.
William Hansen - Reading, Mass.
Daniel Homicki - Elizabeth, N.J.
Kenneth Janusik - Clearwater, Fla.
Steven Kendall - Honolulu, Hawaii
Stephen Kiser - Elkhart, Ind.
Ronnie Lockett - Bessemer, Ala.
Thomas MacMullen - Darby, Pa.
Charles Moller - Columbus, Ga.
Jeffrey Phelps - Locust Grove, Va.
Randy Pierce - Choctaw, Okla.
James Plonsky - Van Nuys, Calif.
Kelly Quick - Linden, Mich.
Earl Ryals* - Boca Raton, Fla.
Robert Shippee - Adams Center, N.Y.
Jeffrey Sibley - Metairie, La.
Lee Stephens - Pemberton, Ohio
James Stevens - Visalia, Calif.
Martin Supple - Jacksonville, Fla.
Gregory Tweady - Champaign, Ill.
Joseph Watson - Ferndale, Mich.
Wayne Weaver - New Bethlehem, Pa.
Terrance Weldon - Coram, N.Y.
Lloyd Wilson - Summerville, S.C.
Vincent Ulmer - Bay Minette, Ala.
*Buried in Arlington National Cemetery

The Iraqis said it was an accident, but I didn't believe them.

That was the opening shot, and I'm still pissed -- I wanted so much for them to try messing with US while I was in that region some months later aboard the USS Curts, but they didn't oblige.

And more have died -- both in acts of sacrifice in service, and in deliberate acts of mass murder -- since then. How much longer are we going to wait?

No matter: I still remember...


posted by Anonymous at 6:07 PM | permalink | "The Refuge"

Indy 500 Speeds Punditwatch

Will Vehrs

TV Punditwatch has been posted, thanks to ABC Sports preempting This Week for the big race. Tim Russert and Tom Daschle dueled, David Brooks used a coitus metaphor, and David Corn talked nutrition. It's all there and more in today's report.
posted by Will Vehrs at 1:10 PM | permalink | "The Refuge"

My Musical Hero

Tony Adragna

Doing a little channel surfing, I came across Bravo's new show "Musicians". The show I saw tonight featured the person who I consider the world's all-time greatest lyricist (though, he admits to being not a very good pianist and vocalist, I disagree -- I love his style).

Who is this person?

For my tastes, it's none other than Randy Newman. If you wanna know why, here's an example, which also happens to be particularly apropos:

Political Science


No one likes us-I don't know why
We may not be perfect, but heaven knows we try
But all around, even our old friends put us down
Let's drop the big one and see what happens

We give them money-but are they grateful?
No, they're spiteful and they're hateful
They don't respect us-so let's surprise them
We'll drop the big one and pulverize them

Asia's crowded and Europe's too old
Africa is far too hot
And Canada's too cold
And South America stole our name
Let's drop the big one
There'll be no one left to blame us

We'll save Australia
Don't wanna hurt no kangaroo
We'll build an All American amusement park there
They got surfin', too

Boom goes London and boom Paree
More room for you and more room for me
And every city the whole world round
Will just be another American town
Oh, how peaceful it will be
We'll set everybody free
You'll wear a Japanese kimono
And there'll be Italian shoes for me

They all hate us anyhow
So let's drop the big one now
Let's drop the big one now

Check out some more lyrics fromhis "Sail Away" album.

posted by Anonymous at 2:30 AM | permalink | "The Refuge"