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Saturday, June 08, 2002

QP Saturday

Will Vehrs
I'm running a little late this morning--had to help get my daughter ready for her trip to Washington, DC. She'll be part of a huge crowd on the Mall trying to change the world through ... singing.

I've been pretty scarce here in QP lately due to some personal imperatives. I've really missed commenting and mixing it up with Tony and others. I'm taking a little vacation soon and hope to use that time to decide if I'm going to return to daily blogging or possibly pull back even more. Lots has changed in the blogosphere since I retreated--new voices, changed voices, disappearing voices. Whether or not I'm participating, I'll always be watching the revolution evolve.

Results of the Caption Contest are here. The Caption Contest is a great concept, but I'm going to quit my quixotic coverage and just let it be.

Thursday, June 06, 2002

A Lawmaker/Lawyer Fingers A Problem

Tony Adragna
Senator Specter put the question to Director Mueller:
SEN. ARLEN SPECTER (R), PENNSYLVANIA: Thank you, Mr. Chairman. Thank you, Director Mueller, for coming in on a public hearing and making Agent Rowley available. I believe that the public hearings are indispensable if we're to have effective oversight. I think otherwise it's like a tree falling in the forest: Nobody hears it, there's no sound.

When this committee did oversight on Ruby Ridge in this room, I think it was very effective, and it is my hope that, with the talents that we have on this committee, we can be of assistance to the FBI and the CIA.

My own professional judgment is that it wasn't a matter of connecting the dots before 9/11, I think there was a virtual blueprint. I think had all of it been put together, or leads followed that could have been put together, I think there was a distinct possibility of preventing 9/11.

I want to cover with you four subjects. In the absence of an opening statement, I want to review a number of items and then ask you to comment, after I've covered the four of them. Because if we get into dialogue, I'll never get beyond one or two.

The Rowley letter states that in determining probable cause, she was looking for a 51 percent likelihood, but the U.S. Attorneys' Office was looking at 75 to 80 percent. Now, even a 51 percent standard is not correct. You don't have to have more likely than not or a preponderance of evidence, and that was made explicit by Justice Rehnquist in Gates (ph) versus Illinois. So, we've got to take a look at what's going on these FISA applications as to whether you're looking for more than you have to.

Then this letter from Agent Rowley refers to FBI headquarters questioning whether this Zacarias Moussaoui was the same as the one that they knew about. Zacarias Moussaoui is not exactly a common name like John Smith, and when the Minneapolis office went back to Paris to have the phone books checked, they could only get the Paris book, there was only one in there. But according to Agent Rowley, there continued to be resistance.

So what I think we have to do, and pursue these in other hearings in detail, is what is your bureau looking for on probable cause? Seems to me you have a vastly inflated standard.[emphasis and links added]
I thought Gates might be the proper standard for "probable cause", which is why I cited it last night. It doesn't really matter whether the application is in a criminal matter, or a national security matter, so long as "given all the circumstances set forth in the affidavit before him, there is a [in a criminal case, "fair probability that contraband or evidence of a crime will be found in a particular place", or, in an FI/FCI activity it can be restated "fair probability 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;"]

The difference on "probable cause" is only that where 4th Amendment protections apply -- criminal matters and "U.S. Persons" -- the applicant must submit facts related to a violation of the criminal code that has been, is being or will be committed, whereas FISA applied to "foreign agents" who are not "U.S. Persons" does not require any "submission of facts" or "finding" related to a crime. I say "only", but it's actually a BIG difference -- it's the difference between the "full protection of Constitutional rights" v. the "[non] transfer [of] the traditional Fourth Amendment warrant requirement unaltered into the foreign intelligence field" that Dean Kmiec notes below.

Senator Specter continues:
Well, in conclusion, had the Foreign Intelligence Surveillance Act warrant been issued for Moussaoui, and what we now know by 20/20 hindsight, it would have uncovered a wealth of information had that been done in August, when Agent Rowley submitted it.

And we had gone through these Foreign Intelligence Surveillance Act problems in detail on Wen Ho Lee Case. We have been on notice as to what went on. Attorney General Reno testified at great length about her turning down the Foreign Intelligence Surveillance Act warrant application. So we have been on notice as to what should have been done, but had that warrant been issued and the follow-up been on Moussaoui, it would have been a virtual gold mine.
Senator Specter refers to the Wen Ho Lee case, and here's what he said in re FISA then:
The Department of Justice was wrong to reject the 1997 request by the FBI for electronic surveillance under the Foreign Intelligence Surveillance Act. Had the request been permitted to go forward to the court, Dr. Lee's illegal downloading could have been detected and halted in 1997. The Department of Justice's own internal review, conducted by Assistant U.S. Attorney Randy Bellows , concluded that the request should have been approved.
My purpose here isn't to assess blame, but merely to identify what went wrong, and to counter disingenuous poltical polemic.

Of course, the FBI isn't the only agency where there are problems: there are plenty of other failures that are going to be identified -- both in the FBI & other agencies, and some probably won't be revealed publicly -- and changes will need to be made. But, to say that the FBI, or any other agency, couldn't do it's job because FISA wouldn't let it get done is a counterfactual assertion.

It's all coming together now -- just connect the dots.

Department Of Homeland Security?

Tony Adragna
On September 21st I wrote in the fray
I'm not sure that I like where this idea is going. Do we need somebody to coordinate the activities of the various agencies that are dealing with 'The Threat"? Obviously, we do, as evidenced by the failure to, at least, share information between different agencies on a timely basis. But, do we need somebody "with line authority" (emphasis added, Sen. Lieberman quoted in a WP story) and all that implies?

Maybe my concern is an overreaction to the image that this proposal evokes - replace "Homeland" with "State", and "Office" with "Committee", and you get the picture. Combine this development with the establishment of a "Homeland Defense Force", ostensibly engaged in preparing defenses against future attacks, but just as capable of being used as a "security force", and the concern deepens.

Who's overreacting here - me or our government? I hope it's just me
The "image" is a bit of hyperbole, and I've become even more convinced that there is a need for some central place where "data" collected from the field comes together and the response is coordinated. But, I think that the creation of a whole new bureaucracy is not only an overreaction -- it might also be counterproductive.

I'll need to be convinced..


Wednesday, June 05, 2002

What He Said, Better Than I Did

Tony Adragna
Philippe Richards writes in again to say:
Musil seems to adopt Riebling's rather silly interpretation of the FISA. Perhaps Riebling does not misstate, but paraphrases. Wrongly. And even you understate the silliness of his analogy to a breathalyzer test. It's actually more like arresting me for driving drunk then searching my house for evidence that I may be planning to kill someone. FISA contains no requirement that a showing be made that a target of investigation has committed, is committing, or is planning to commit anything, Musil's logical leaps notwithstanding. We may restate many things, but if FISA required such a showing, I wonder what use FISA is at all, since a probable cause showing that somebody is about to commit a terrorist act or has already done so would surely satisfy at least one criminal statute that requires good ol' probable cause as we know it. Does anybody know of a terrorist act that is not otherwise illegal under normal criminal law? Perhaps shouting loudly 'cross the Potomac?

The possibility of FISA applying to an "innocent agent" is indeed a trivial intellectual puzzle. But the possibility of FISA applying to an agent who has not been observed to act in any way suspiciously is not. That does not mean there is a Catch-22. It means FISA applications rely on evidence that was obtained through intelligence sources, often foreign ones, as a hypothetical FISA application for Moussaoui would have. FISA assumes that some surveillance has already occurred. Interestingly, the warrant application for a search of Moussaoui's computer, which was eventually granted, apparently did not contain any of the French intelligence information regarding Moussaoui. Probably because the FBI did not want to reveal such information outside of the FISC.
Maybe highlighting a certain point might clear up some confusion on what was going on with "probable cause" vis a vis warrants that were being sought. There were, according to Rowley, two tracks being considered - a regular "criminal search warrant", and her preference for a FISA warrant. The two different warrants require different showings on "probable cause". For a "criminal search warrant", there indeed needs to be a showing of "probable cause" that a crime has been, is being, or will be committed -- for what "probable cause" means in the 4th Amendment context, read the Annotations to the Amendment.

Did the Minneapolis agents meet the "probable cause" standard to obtain a "criminal search warrant"? I haven't addressed that question[my comments so far have been addressed only to FISA]. But, since Philippe raises it, here's what Rowley admits:
The Minneapolis agents' initial thought was to obtain a criminal search warrant, but in order to do so, they needed to get FBI Headquarters' (FBIHQ's) approval in order to ask for DOJ OIPR's approval to contact the United States Attorney's Office in Minnesota. Prior to and even after receipt of information provided by the French, FBIHQ personnel disputed with the Minneapolis agents the existence of probable cause to believe that a criminal violation had occurred/was occurring. As such, FBIHQ personnel refused to contact OIPR to attempt to get the authority. While reasonable minds may differ as to whether probable cause existed prior to receipt of the French intelligence information, it was certainly established after that point and became even greater with successive, more detailed information from the French and other intelligence sources[...]
It must be noted, though I thought I noted it already, that the warrant eventually issued on September 11 was a "criminal search warrant" -- it had to meet the test on "whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched, and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant." (DUMBRA v. U S, 268 U.S. 435 see also ILLINOIS v. GATES, 462 U.S. 213 "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place.").

The affadavit most likely didn't contain the "French intelligence information" because at that point they weren't dealing with the FISA standard, but the tougher standard of "good ol' probable cause as we know it" under "the traditional Fourth Amendment warrant requirement" that Dean Kmiec notes below -- that is, whether the information on Moussaoui's hard drive included evidence related to the "violation" that "had occured".

Philippe asks the pertinent question when he says, "I wonder what use FISA is at all, since a probable cause showing that somebody is about to commit a terrorist act or has already done so would surely satisfy at least one criminal statute that requires good ol' probable cause as we know it." He's obviously being rhetorical, since he already knows the answer - FISA is not a "law enforcement" tool, but an "intelligence gathering" tool [well, now it's arguably also a "law enforcement" tool, since USA-PATRIOT changed FISA so that FI and FCI intelligence gathering no longer need be the purpose, but only need be a significant purpose].

Whether the "foreign person" is engaged in a crime is irrelevant [it's only relevant when the target is a "U.S. Person"] -- it's "WAR AND NATIONAL DEFENSE " that Title 50 addresses. In that context, the "probable cause" finding need only reach whether the person is a "foreign agent", even if the agency is not criminal. The "facts submitted by the applicant [that] there is probable cause" to issue a FISA warrant do not need include any evidence of a crime. Indeed, "Among the unsuccessful challenges [to FISA] were that there must be probable cause to believe that the target has committed a crime".

In order to satisfy "probable cause" that Moussaoui was an ''Agent of a foreign power'', the agents in Minneapolis needed only submit facts to show that Moussaoui met the definition at Sec. 1801(b) -- the information from the French Intelligence Services (if correct) was sufficient to that requirement. The law says "a group engaged in international terrorism or activities in preparation therefor" (1801(a)(4)), and "[any person other than a United States person, who] acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section"(1801(b)(1)(A)). There's no requirement under the definition that the person "has actually committed, or is conspiring to commit, a terrorist act"

Finally, Mr. "Musil" takes a convoluted course in defending Mr. Riebling's misstatement of the law. Mr. Riebling used the present participle "conspiring" to mean: planning an illegal act. Mr. "Musil" uses the noun "conspiracy" to mean: a group of conspirators. On this set of facts alone Mr. "Musil's" defense is disingenuous - Mr. Riebling was refering to "probable cause" related to [a] specific act[s] of terrorism, which FISA doesn't require. And, the defense is a bit of a tautology -- the very nature of "agency" vis a vis al Qaeda is a terrorist conspiracy: if you have "probable cause" of the "agency", then you by definition have "probable cause" of involvement in the "conspiracy". So, what's the point Mr. "Musil:?

I still say that Riebling misstated the law.

Uncuffing The FISA

Tony Adragna
Man Without Qualities is still going at it, and cites "Uncuff the FBI Congress must undo the Church Committee's damage", an OpinionJournal - Featured Article BY MARK RIEBLING and "an excellent outline of how and why liberal Democrats have demolished much of the nation's intelligence capability over the last thirty years - including the disastrous passage of the Foreign Intelligence Surveillance Act of 1978"

Several problems are immediately evident in Mr. Riebling's articles.

First, Mr. Riebling conflates the idea of "search incident to arrest", the idea of giving a breathalyzer test for "probable cause" -- smelling bourbon on the breath -- and the circumstances surrounding the request to search Moussaoui's computer. Moussaoui was arrested, then his home was searched, and the computer was found. The proper comparison would not be to a patrolman exercising "discretionary search authority". Rather, it would be more like a patrolman violating the "plain sight" rule -- going to your home to find booze, instead of just looking in your car. At law the patrolman has no more discretionay authority than any other law enforcement officer -- including agents of the FBI. What hampered the FBI is its own guidelines (too restrictive), and a culture that -- for whatever reason -- punished any kind of risk taking.

Mr. Riebling goes on to misstate the law, and Mr. "Musil" lets him get away with it:
To obtain a warrant from the court, however, the attorney general cannot simply aver that the suspect belongs to a terrorist group. Rather, there must be "probable cause" that he has actually committed, or is conspiring to commit, a terrorist act. Since such evidence can seldom be gathered without some form of eavesdropping, FISA creates a classic Catch-22.[emphasis added]
Anybody who has ever read TITLE 50 , CHAPTER 36 knows Mr. Riebling's statement to be false -- before the FISC will issue an order, the "necessary finding" on "probable cause" is

on the basis of the facts submitted by the applicant there is probable cause to believe that


the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and


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;
Starting to not look so good for Mr. Riebling, and Mr. "Musil" by extension. And, before I get accused of misreading the law (I'm only a law-librarian, not a lawyer), let's read what DOUGLAS W. KMIEC, Dean of the Law School of The Catholic University of America, said in his congressional testimony:
It must be remembered that FISA itself did not transfer the traditional Fourth Amendment warrant requirement unaltered into the foreign intelligence field. As suggested earlier, the statute does not contain a blanket warrant requirement; rather, it exempts certain categories of foreign intelligence surveillance. 50 U.S.C. 1802. Nor does the statute require the executive to satisfy the usual standards for the issuance of a warrant; the executive need demonstrate only probable cause that the target is a foreign power or a foreign agent and, in the case of United States citizens and resident aliens, that the government is not clearly erroneous in believing that the information sought is the desired foreign intelligence information and that the information cannot be reasonably obtained by normal methods. 50 U.S.C. sections1805 and 1804(a)(7)(E).
If you're going to make the case that the law sets an "excessively high standard", then you need to at least start with a correct statement of what the law actually is.

You want "an excellent outline" of what went wrong, here's what the National Commission on Terrorism said under the heading "The Department of Justice applies the statute governing electronic surveillance and physical searches of international terrorists in a cumbersome and overly cautious manner":
Pursuant to the Foreign Intelligence Surveillance Act (FISA), the FBI can obtain a court order for electronic surveillance and physical searches of foreign powers, including groups engaged in international terrorism, and agents of foreign powers.

Applications from the FBI for FISA orders are first approved by the Office of Intelligence Policy and Review (OIPR) in the Department of Justice before being presented to a judge of the FISA Court for approval. OIPR has not traditionally viewed its role as assisting the FBI to meet the standards for FISA applications in the same way that the Criminal Division of DoJ assists the FBI investigators to meet the standards for a wiretap. For instance, the Criminal Division works with the investigating agents to identify and develop ways to obtain the type of information needed for a particular application to satisfy statutory requirements. OIPR has traditionally not been that proactive.

The Commission heard testimony that, under ordinary circumstances, the FISA process can be slow and burdensome, requiring information beyond the minimum required by the statute. For example, to obtain a FISA order, the statute requires only probable cause to believe that someone who is not a citizen or legal permanent resident of the United States is a member of an international terrorist organization. In practice, however, OIPR requires evidence of wrongdoing or specific knowledge of the group's terrorist intentions in addition to the person's membership in the organization before forwarding the application to the FISA Court. Also, OIPR does not generally consider the past activities of the surveillance target relevant in determining whether the FISA probable cause test is met.
Again, it's problems inside the bureaucracy, not the statute. The Commission goes on to recommend:
The Attorney General should direct that the Office of Intelligence Policy and Review not require information in excess of that actually mandated by the probable cause standard in the Foreign Intelligence Surveillance Act statute.

To ensure timely review of the Foreign Intelligence Surveillance Act applications, the Attorney General should substantially expand the Office of Intelligence Policy and Review staff and direct it to cooperate with the Federal Bureau of Investigation.
This is all from the report transmitted to the White House and both houses of Congress on June 7, 2000. It too reads "like a prequel to the Rowley letter." Of course, this time the OIPR didn't get a chance to screw up -- the FBI kept the screw up in-house!

Ironically, the Commission made an obeservation in re "the culture" that "Musil" and Kaus talk about:
The risk of personal liability arising from actions taken in an official capacity discourages law enforcement and intelligence personnel from taking bold actions to combat terrorism.

FBI special agents and CIA officers in the field should be encouraged to take reasonable risks to combat terrorism without fear of being sued individually for officially authorized activities. However, government representation is not always available to such agents and officers when they are sued. As a result, FBI special agents and CIA officers are buying personal liability insurance, which provides for private representation in such suits.

By recent statute, federal agencies must reimburse up to one half of the cost of personal liability insurance to law enforcement officers and managers or supervisors.


Congress should amend the statute to mandate full reimbursement of the costs of personal liability insurance for Federal Bureau of Investigation special agents and Central Intelligence Agency officers in the field who are combating terrorism.
Why couldn't the Congress get this change done during the 6 years that the GOP controlled? Go figure...

Mr. Riebling would be correct when he says "these FISA guidelines may well have prevented the FBI from foiling the Sept. 11 attacks" if he means the guidelines established internally at FBI and DoJ, but that's not what he means, so he's just plain ol' wrong. And there's at least one person in the FBI "saying it aloud" that the guidelines at FBIHQ and DoJ are getting in the way -- read Agent Rowley's letter.

Mr. "Musil" goes on to say:
In a later post , [Adragna] rehearses the spurious Fourth Amendment arguments already addressed here. For example, Mr. Adragna quotes Representative Bob Barr's (R. Ga.) concern about expanding the government's ability to monitor Americans as relevant to what the FISA standard should be in monitoring non-Americans.
Gotcha! Mr. "Musil", you can't get your own argument straight. Both Mr. "Musil" and Kaus took apart Senator Leahy's statement on the 2000 Act -- but, Leahy was talking about the Wen Ho Lee case, and Wen Ho Lee is a citizen of the United States. If the Leahy statement was wrong, then so is the Barr statement -- they're talking about the same group of people. I, on the other hand, drew the distinction between "U.S. Persons" and non-citizens in my May 24 entry "Did We Have The Tools?"
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.
I'm correct in comparing the Leahy statement to the Barr statement, and I'm correct about the distinction between a "United States Person" and "foreigners": there is a different standard which does not what Kaus objects to -- extend full 4th Amendment rights to non-"United States Persons".

Mr. "Musil" then goes on to take me to task for not citing the portion of Footnote 7 which says:
"Another factor that cannot be underestimated as to the HQ Supervisor's apparent reluctance to do anything was/is the ever present risk of being "written up" for an Intelligence Oversight Board (IOB) 'error.' In the year(s) preceding the September 11th acts of terrorism, numerous alleged IOB violations on the part of FBI personnel had to be submitted to the FBI's Office of Professional Responsibility (OPR) as well as the IOB. I believe the chilling effect upon all levels of FBI agents assigned to intelligence matters and their manager hampered us from aggressive investigation of terrorists."
Well, two can play at that game. Rowley goes on to say in Footnote 7:
Ironically, in this case, a potentially huge IOB violation arguably occurred due to FBIHQ's failure to act, that is, FBIHQ's failure to inform the Department of Justice Criminal Division of Moussaoui's potential criminal violations (which, as I've already said, were quickly identified in Minneapolis as violations of Title 18 United States Code Section 2332b [Acts of terrorism transcending national boundaries] and Section 32 [Destruction of aircraft or aircraft facilities]).
And she finishes the footnote with:
However, (and I don't know for sure), but to date, I have never heard that any potential violation 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."] has been submitted to the IOB or to the FBI's OPR. It should also be noted that when making determinations of whether items need to be submitted to the IOB, it is my understanding that NSLU normally used/uses a broad approach, erring, when in doubt, on the side of submitting potential violations.[sorry for the extended insertion, but it's needed to clarify what "this directive" is that she references - ed] "
Since the NSLU errs "on the side of submitting potential violations", and she doesn't seem to be aware of any (though, she doesn't know for sure), it can be reasonabley assumed that there aren't many, if any at all. In other words, there's an assertion of fear over something that might happen very rarely, if ever at all, offered as an excuse by Mr. "Musil" for why the FBIHQ agents failed to act. Not buying it.

[Update: Besides, it's not accurate to be charging Adragna with incompleteness in the two relevant quotes from the Rowley letter. Anybody who was paying attention to the entries on May 30 and on May 31 would have caught on that I was quoting another blogger in the first instance, and an email in the second]

Mr. "Musil" also cites Mr. Kristoff saying, "The bottom line is that Mr. Moussaoui was thrown in jail — thank God — not because there was evidence he had committed a crime but because he was a young Arab man who behaved suspiciously and fit our stereotypes about terrorists." Actually, if it were just for the "stereotype", Moussaoui would not be in jail -- to assert otherwise is a contradiction of Mr. Musil's own argument that the reason the FBI couldn't act was because of the culture of PC. The reason why Moussaoui was in jail is because he was "out of status" -- a "crime" -- notwithstanding the suspicions of the agents in Minneapolis, the only cause they had to jail Moussaoui prior to learning from the French that he was a "foreign agent" is the fact that he was "out of status".

Rowley says it clearly: "Moussaoui's overstay status was fortuitous, because it allowed for him to be taken into immediate custody and prevented him receiving any more flight training." If it had not been for the "overstay", then Moussaoui would (could) not have been arrested until the "reasonable suspicions" had "ripened into probable cause." That "at the latest, occurred within days of Moussaoui's arrest when the French Intelligence Service confirmed his affiliations with radical fundamentalist Islamic groups and activities connected to Osama Bin Laden" But, Mr. "Musil" is feeling inquisitive:
If what Mr. Kristof writes is true, are civil libertarians or anyone else willing to assert that prior to September 11 there was indeed sufficient FISA "probable cause" for issuance of a warrant to search his property?

Where are the media which the FBI did not present to the FISA court even after the events of September 11? Little seems to be known about it beyond the third-hand bits included by Agent Rowley in her now-famous memorandum.
Well, if what Agent Rowley says is true, and Kristoff doesn't contradict Rowley's assertion that "reasonable suspicions quickly ripened into probable cause[,,,] within days of Moussaoui's arrest" (he merely notes the extent of the original "reasonable suspicions") , then this "civil libertarain" will assert -- nay, has been asserting for some time -- that as early as August 17 (or 18, or 19th -- however many days Rowley means by "within days", but certainly well "prior to September 11"), there was "sufficient FISA 'probable cause' for issuance of a warrant to search his property." But, you don't wanna take my word, so we'll wait for the reports to come out -- after the FBI IG's office has done its thing, and after Congress has done its thing. I'm predicting (and I've had a long run of prescience since I started blogging on Oct 9) that the coming report will be a sequel to the reports I've previously cited.

The answer right now on "interviews with the FBI(Washington) officials who denied the warrant", and "the full evaluations of that 'French intelligence'" is supplied by a QP reader who suggests, "I suppose it's being withheld on national security grounds. Perhaps Musil can ask Frank Church to get it out of our national security establishment."

Get real, "Musil": you think the FBI and CIA are going to give detail on what they got from the French? I'm sure the French would love that -- nothing will dry up a source faster. I thought you were about making it easier on our intel folks?

Finally, Mr. "Musil" conflates the issue of "alleged IOB violations on the part of FBI personnel" with the Clinton directive on the use of "unsavory characters" by the CIA -- the FBI has its own problems with "unsavory characters". And, the issue of "unsavory characters" doesn't have any relevance to our dispute on FISA. But, since Mr. "Musil" wants to make that long jump "'cross the Potomac" (and a few other rivers, I think) from 10th and Penn NW all the way over to Langley, VA, let's indulge.

Three things worth noting on this issue vis a vis whether it hampered our ability to learn about the Septembr 11 conspiracy:
1. We probably would not have been able to use an "unsavory character" to penetrate al Qaeda in the first place. That's because when you look to recruit an "unsavory character" , you're looking for somebody who has street cred. That is, if you wan't somebody to get inside a terrorist organizations, you want to try for somebody who has been, or might still be, a terrorist. In other words, you're talking about trying to recruit an Islamic radical with ties to terrorism to be your agent inside al Qaeda. Good luck -- a person fitting that description isn't going to want to work for the CIA.

2. Let's assume for a moment that I'm wrong above, and such a person would offer his services to the CIA. Would that have gotten us what we needed to prevent September 11? Not likely - al Qaeda takes operational secrecy very seriously, and on this one it was very tight. The only chance we would have had would be if we got lucky and our recruit was picked for the operation -- that's a very big if.

3. We did have a lot of intel -- enough to suggest that something big was in the works, and it was going to involve airplanes. We had intel on members of al Qaeda entering, leaving, and re-entering the U.S. after meetings with other al Qaeda members in Malaysia. But, that wasn't enough -- we needed some HUMINT from inside al Qaeda. Guess what: we actually had access to an "unsavory character" who was involved in the operation - his name is Moussaoui, and we blew the chance to get what we could have gotten out of him before the fact.
Mr. "Musil" keeps pointing to what can only be failures at intelligence gathering, and blames it all on Clinton era policies. However, the absence of those policies would have made little, if any, dfference in preventing September 11. Rather, we failed to use what we did have at our disposal (a failure that "having more" does nothing to rectify).

Much of the failure to use the tools we have can be attributed to a risk-averse culture -- you solve that problem by changing the culture, not the statute.

The only real limitation that FISA placed on FI and FCI activities in the U.S. is that they be for a lawful purpose, and defined what those purposes are. Yes, the statue establishes special warrants for FI and FCI, and a special court to rule on the issuance of those warrants -- but court cases post-FISA have all affirmed that the government doesn't really need a warrant so long as the primary purpose of the investigation is 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)). So, absent an effective impediment at law, we must turn somewhere else -- the guidelines, and asking for more than is necessary to meet the statutory requirement. Those are issues which need immediate corrective action, and if a few heads need roll in order to get it done, then so be it.

What we can't do is what Senator Leahy did after the Wen Ho Lee case, and what Mr. "Musil" is doing now -- disbelieve the evidence right before our eyes. It's history repeating itself, and Mr. "Musil" wants us to make the same old mistake.

The whole Clinton era policy polemic is a red herring tossed into the water to distract from crticism of the agencies -- criticism that Mr. "Musil" blames for all that's wrong. All I can say to that is: If you don't screw up, then you don't get reamed!


Addendum: All you folks who read Mr. Taylor's email as a criticism of the "Dukakis-like civil-libertarian" 4th Amendment protections for non-citizens rationale, try reading what Mr. Taylor wrote on 5/28/2002:
The unfortunately named Osama Awadallah was not the only one. Not by a long shot. Despite the unprecedented secrecy imposed by Attorney General John D. Ashcroft, evidence has mounted that his Justice Department has put hundreds of harmless Muslim men from abroad behind bars for far too long, treated many of them worse than convicted criminals, and arguably violated their constitutional rights -- all without finding enough evidence to charge a single one of those arrested since September 11 with a terrorist crime or conspiracy.
Is Mr. Taylor a "Dukakis-like civil-libetarian" who wants the "constitutional rights" of non-citizens respected? He goes on:
Ashcroft detention regime appears more and more disturbing the more we learn about the meager justifications for the vast majority of these detentions and their apparent ineffectiveness in fighting terrorism. Using alleged immigration violations as pretexts, the attorney general has assumed powers that Congress never gave him to lock up apparently harmless people with no real justification beyond possible links to terrorism -- and to keep them locked up until the FBI satisfies itself that they are harmless.
That "pretext" is the very same as was used to initially arrest Moussaoui, whose "links to terrorism" were very quickly established. I don't disagree with Mr. Taylor (actually, I tend to agree with most of what he writes), but if that "pretext" had not been used...

Sunday, June 02, 2002

Who's Worried About The 4th Amendment?

Tony Adragna
It's been much touted lately that criticism of the FBI for abuses are at the root of an inability to conduct intelligence operations in the United States. It's further asserted that "Dukakis-like civil-libertarian[s]" are to blame. While I don't deny (and never have) that Democrats have been critical, I've only striven to show that Republicans are just as much concerned about "civil-liberties", and share any blame for whatever cultural phenomenon may have resulted in the FBI imposing upon itself irrational limits.
With the Supreme Court finding, that there are limits to the government’s use of technology to invade privacy, those of us who seek to protect and defend the 4th Amendment, must now apply this philosophy to other invasive government programs; such as the FBI’s Internet-snooping program, Carnivore. Developed ostensibly to fight and prevent crime, this computer system has the ability to sort through all e-mail correspondence between law-abiding American citizens traveling over any Internet service provider (ISP). Although current law requires the Department of Justice to obtain a court order before using Carnivore, the standard under which it is entitled to install Carnivore, is the lowest possible standard, and allows for no input from outside parties, including the ISP. Moreover, the government is free to look at whatever e-mail traffic it wants with no oversight at all. To this day, and despite requests made by Congress and public interest groups, the extent to which this system has been used by the government remains unclear
That came from a column by Congressman Bob Barr (R - GA) published last June. Note -- the Supreme Court decision that he references at the beginning of the column deals with the use of thermal imaging devices to detect heat signatures inside buildings. Barr said of the Court's decision, "While the facts of this particular case dealt with the growing of marijuana plants under heat lamps inside a house, the principles involved were far more important than the facts of the case." Barr put Constitutional principles ahead of the fact that there was a crime being committed.

Even after September 11th Rep. Barr maintained his focus on "constitutionally protected safeguards" :
In letters sent today to U.S. Attorney General John Ashcroft and House Judiciary Committee Chairman F. James Sensenbrenner, U.S. Representative Bob Barr (GA-7), a senior Member of the Judiciary Committee, urged caution in moving forward rapidly with fundamental changes in law to expand the federal government’s surveillance authority.

"Before we begin dismantling constitutionally protected safeguards and diminishing fundamental rights to privacy, we should first examine why last week’s attacks occurred," Barr wrote. "Our immediate reaction to such unspeakable criminal activity must not be to expand law enforcement’s investigative authority, but to examine how and why execution of current law was not successful. Let us not rush into a vast expansion of government power in a misguided attempt to protect freedom. In doing so, we will inevitably erode the very freedoms we seek to protect."

Barr noted just three years ago, without the benefit of any hearings or extended debate, the federal government’s authority was greatly expanded to include so-called roving wiretaps, through provisions added in secret to the Intelligence Authorization Conference report. "Now, less than three years later, we are on the threshold of granting the government authority to eavesdrop on any person, any time, at any location and the question all Americans need to be asking is ‘when is enough, enough,’" Barr said today. "For example, right now a suspected criminal could walk intoa newspaper reporter’s office, ask to borrow and use a phone, and under current law, the government would have then have the authority to wiretap that phone. Yet, the Administration is seeking to expand even that expansive power."

"If in fact the Attorney General is proposing specific measures to strengthen specific laws against terrorist activities, such as those related to money laundering, he has my full support," Barr said. "However, when we begin to seriously tamper with fundamental laws regarding Fourth Amendment protections for electronic communications, such proposals deserve, at a minimum, a serious and vigorous debate; something the Administration is apparently seeking to avoid."
Note here that something which was supposedly authorized by the USA-PATRIOT Act -- "roving wiretaps" -- were authorized "three years ago", and Rep. Barr doesn't seem to be too happy about the fact.

I'm sure that more research will turn up even more "Dukakis-like civil-libertarian" statements from members of the GOP -- should I go on?

Look, we had 12 years worth of GOP administrations between Carter and Clinton, yet neither Ronald Reagan's nor GHW Bush's A.G.s and FBI Directors thought to change the self imposed too restrictive guidelines (yes: it was the guidelines, not the statue, that were "too restrictive"), nor did the GOP controlled Congress of the last six years of Clinton's term propose a "legislative fix" that put "facts" ahead of "Constitutional principles." Rather, as I previously noted, the one amendment to statute which had the most significant impact on 4th Amendment rights was the '94 Act allowing "warrantless searches", passed by a Democrat controlled Congress with the support of a Democrat president.

"Civil -libertarians" exist in both parties -- which party ends up making the most noise merely depends on whose rights are being "trampled", or which party is in office. But neither party can be singled out as at fault for the culture that places "civil-liberties" ahead of "security" -- the struggle between the two needs is inherent to living in a liberal democracy, which is what the United States is irrespective of which party is in power.

Bush Curses, Dole Sees Elvis

Will Vehrs
The June 2nd edition of TV Punditwatch is up. FBI Director Robert Mueller made his talk show debut, President Bush was charged with not being FDR, and George Will put us all on a slippery slope. All that and more is in there.