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Sunday, June 09, 2002
Punditwatch is up.

It's The Stupid Lawyers

Tony Adragna
Mickey Kaus says, "It's the Law, Stupid", and cites Stuart Taylor's June 8 "Opening Argument" column:
Evidence of terrorist intent alone is not enough;"membership" in some particular international terrorist "group" must be shown.
I haven't read Mr. Taylor's latest, yet (Google hasn't captured it), so I won't respond directly. But, the excerpt sounds an awful lot like what I heard in the exchange between Senator Hatch and Director Mueller:
HATCH: Thank you, Senator Leahy.

Mr. Mueller, as I understand it, the Patriot Act has worked quite well so far, but there is one area where you're having difficulties, and that's FISA requests. We're currently--to get a warrant, there's a requirement of proof of association with the foreign power. Am I right on that?
[Wrong! The requirement is to show "a fair probability that..."]
MUELLER: There is a requirement under the FISA statute that we demonstrate a belief that the person who is under scrutiny and for whom we wish to obtain court-ordered interception is a, quote, "agent of a foreign power." And that has been defined as including an individual who is associated with a terrorist group.
[The demonstration of a belief that the person is a "foreign agent" needn't show that the person is in fact a "foreign agent", but only that the person probably is a foreign agent.]
HATCH: How many of these approximately 20 terrorists that we have been very concerned about participated in the September matter? How many of those could you have gotten a warrant?

MUELLER: Well, prior to September 11 the 19 or the 20 hijackers, it would have been very difficult, because we had--in looking at it, trying to go back we had very little information as to any one of the individuals being associated with...

HATCH: Foreign power.

MUELLER: ... a particular terrorist group.

One of the issues in the Moussaoui set of circumstances was whether or not the evidence was sufficient to show that Mr. Moussaoui was associated with any particular terrorist group. If you talk to the agents--and I know we've had Ken Williams and other agents up briefing the Congress--I believe the agents will tell you that one of the problems they have in this area, which we believe Congress ought to look at, is the requirement that we tie a particular terrorist to a recognized terrorist group.

HATCH: Or a foreign power.

MUELLER: Or a foreign power--agent of a foreign power.

HATCH: In fact, you probably would have had a difficult time showing that any of them were agents of a foreign power.

MUELLER: A terrorist group, a defined--and it's a loose definition--a terrorist group has been defined as an agent of a foreign power.

Our problem comes in trying to show that a particular individual is connected to a specific, defined--in a variety of ways--terrorist group. I mean, once we get a connection with Al Qaeda, for instance, even though it is not a foreign power, Al Qaeda is sufficiently distinct group so that we can get the FISA that we need.

But we have problems where you have a lone wolf, for instance, who may be out there who we think is a threat, but we have difficulty tying to any particular defined terrorist group.
There's an outright lie. There's was knowledge that at least two of the hijackers -- Nawaf Alhazmi and Khalid Almihdhar -- were "members" of al Qaeda and that they were here in the United States. What the FBI didn't know was where at in the United States Alhazmi and Almihdhar had disappeared to after being let back into the country.

That's just one problem with Director Mueller's testimony, and it get's much worse.

Director Mueller seems to believe, along with many other lawyers (some of them Senators), that FISA requires a showing that the target of surveillance is a "member" of a "particular group". Not only does the statute not require such a showing, it doesn't even require that the target be "indentified". Both Section 1804 and 1805 require the "the identity, if known, or a description of the target of the electronic surveillance", and neither requires any "submission of fact" identifying the target as a "member" of a "particular group" at the time that the FISA order is issued. The only qualification is that the "power" be "foreign".

That's not just my understanding of FISA - that's how the FBI and the Fourth Circuit read the statute in US. v. Squillacote. On appeal, Squillacote challenged the vailidity of the FISA warrants on grounds that she was not at the time the orders were issued an "agent of a foreign power". In fact, at the time that the warrants were issued she was not a "member" of any "particular group", since the only actual foreign agency that ever existed was with a "foreign power" -- East Germany -- that no longer existed. To which the Fourth Circuit responded:
After reviewing the applications, the district court concluded that each of the more than 20 FISA applications established probable cause to believe that the Appellants were agents of a foreign power. We have reviewed de novo the relevant materials, and likewise conclude that each FISA application established probable cause to believe that Squillacote and Stand were agents of a foreign power at the time the applications were granted, notwithstanding the fact that East Germany was no longer in existence when the applications were granted.
What the FBI based their necessary belief that Squillacote was an "agent of a foreign power" on was her prior involvement with East Germany and her continued suspicious activities. But, there was no "membership" in any "particular" group at the time the agents applied for and recieved the order. There was only the search for "another connection" with which to pursue her attempt to engage in espionage.

Indeed, the FBI only learned of any "current" link to a "particular" "foreign power" -- Ronnie Kasrils, the Deputy Defense Minister of South Africa, who was a Communist party official -- after the orignial FISA warrant had been issued.

Squillacote's attempt to engage in espionage ["Other than the four documents
passed to the undercover agent, the government presented no evidence establishing that Squillacote or Stand had previously supplied classified documents or information to Ziemer or anyone else."], notwithstanding the fact that there was no "membership" in a "paerticular group" at the time that the FISA order was issued, was enough to satisfy "probable cause."

Which brings us to "the Moussaoui set of circumstances" where Director Mueller avers "the evidence was [not] sufficient to show that Mr. Moussaoui was associated with any particular terrorist group." The precedent in Squillacote establishes that such a showing is not necessary. Rather, it's enough to show that the target has a prior history with such groups, and/or may be attempting to act on behalf of such a group. Information from the French established the prior history, and the circumstances of Moussaoui's presence in the U.S. along with the activities that he was engaged in were sufficient to establish "probable cause".

Yes, the information from the French was relevant, no less than was the information about Squillacote's association with the East Germans.

How relevant was the French information? Well, I've heard Director Mueller say that the information linking Moussaoui to Chechen Islamic radicals wasn't sufficient because the State Department never established that the Chechens are involved with al Qaeda. There are two problems with that rationale:
A. Wouldn't Chechen terrorists, whether they're linked to al Qaeda or not, still be considered a "foreign power" under the statute?

B. In August 1998 the U.S. State Department linked Osama bin Ladin to Chechen terrorists.
A and B, plus a threat assessment that warned of al Qaeda intentions to hijack aircraft, should have been sufficient to lead the FBIHQ toward a judgement that Moussaoui's activities here in the U.S. and the intelligence from French sources were enough to establish a fair probability that Moussaoui was an "agent of a foreign power".

Coleen Rowley was correct, notwithstanding the attempts by Director Mueller et al to rationalize an excuse for what can only be described as a "failure to act.

Related Reading

Fellow Navy vet Bill Herbert of COINTELPRO Tool says, "Kaus has completely lost it", and blames me for setting him off -- I've been guilty of much worse.

And, Jonathan Turley argues that Rowley was "Wrong, as a Matter of Law". I think Professor Turley is wrong when he says of Rowley's assertion that nothing "improved or changed" vis a vis "probable cause" post-September 11th, "This is simply wrong as a matter of law. The attacks were obviously material to establishing probable cause against Moussaoui."

Actually, Agent Rowley admits that there was a "change" -- the crime had already been committed. Professor Turley seems to be arguing "probable cause" can never be established that a crime is about to be committed -- the planning of a crime is itself a crime -- and that seems to me to be wrong.

But, in the lower half of the piece we get at what Turley's real object is: FISA. Turley was an attorney at NSA during the '80s, and is concerned that FISA is being overused, and msiused in criminal cases.