NSA - FISA Ego's be damned

Secret Court's Judges Were Warned About NSA Spy Data

More leaks....

'Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen."


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

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

Better Firewall........yeah.....fiddling with your law books while Rome Burns......

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

Again, so what's the beef? Where is the malious intent in the fact that "the president wanted to detect possible terrorist activity before another attack"? The fact is that "broad suspicious patters" isn't a new concern. We who are in law enforcement have voiced this concern for years. In obtaining warrants you must show probable cause. In short, show the judge why you want to do your job. Some judges were easy, others seemed to always be on the side of evil.

We are familiar with the story of the person who is being threatened, but told by the police, "We can't do anything until they make a move towards you". "Oh, so you say that AFTER I'm killed you can do something?"

Once again, there is NO particular right to privacy, but there is a specific right to LIFE in the Constitution. If it's the death of thousands verses you and your private conversation with Osama - you lose.

That said, we all know that we are a nation set apart - a shining of example of freedom. I don't want a "police state" either. But I also don't want bad guys killing my family because of "technicalities".

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

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

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

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

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

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

The fact is that in a time where it was needed the President used his powers under Article 2 to defend the nation. For all the screaming and hollering about "Bush Spying", to this date not ONE shred of evidence shows that this authorization was used any reason other than to catch bad guys.

The point that a couple of stuffed shirts (and skirts) on the FISA court were "confused" or "miffed" merely means in my mind that they've possibly have become too big for their britches.

The real issue here beyond the ranting of the extreme nutcase left, is that there may need to be clarification, and or better and more up to date laws written that give us a greater balance between security and freedom. Instead of trying to scream impeach or call good evil, we should be looking to see what we can do to give the President the power to protect the country, while addressing the legitament concerns of those who want to insure that citizen rights are protected.

In speaking about the NSA hearings Capt Ed put it this way:

"Expect Congress to pass legislation, either through FISA or a new structure, that deals with the collection of intelligence in wartime. As long as impeachment talk stays off the table and Democrats continue exercising a more reasonable tone on the subject, then the White House may play along as long as possible without actually signing it. My prediction will be that in two months, people will have to dig through the archives to even recall why intelligence collection during wartime caused such a stink in the first place."

Moreover this from this opinion piece in the WSJ: (h/t to Rich Lowry at NRO):

"In short, there is no obviously constitutional and practical means of subjecting NSA's al Qaeda surveillance program to regular judicial review. Instead, Congress must itself shoulder the responsibility. It might enact a new FISA that would fully bless the president's activities, but add enhanced oversight, involving more information sharing with more members of Congress, backed up by the threat to use its fiscal powers to de-fund the program if abuses arise.

Having thus secured a bigger seat at the table, Congress would also have to share fully in the political risks and rewards associated with the NSA terrorist surveillance program. This may well be politically difficult and bureaucratically cumbersome, but no one ever said that constitutional governance is easy. Despite much grumbling by the critics, the real constitutional problem we face today is not the administration's program. Rather, it is demands that the president's war powers be checked by the judiciary, which is not politically accountable, instead of by Congress, which is."

Which is the reason while the stuffed shirts/skirts are so ....stuffed. This is war - no time for egos!

Hugh Hewitt blasts Judge Colleen Kollar-Kotelly:

"This Washington Post account makes clear that U.S. District Court Judge Colleen Kollar-Kotelly, Chief Judge of the Foreign Intelligence Surveillance Court, is making crucial decisions about the extent of the country's surveillance operations against al Qaeda --on her own.

Exactly Hugh!

UPDATE: More at AJ Strata.

UPDATE II: For those who are stuck on stupid with the President "broke the law" mantra. I quote from the Foreign Intelligence Surveillance Act (FISA). Section 1802, "Electronic Surveillance Authorization Without Court Order.

"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year"

For more informed and learned comments on this read here.

The issue of "legality" isn't intellectually honest. If one wants to debate the interpretation of the law that's one thing, but only the ignorant and uninformed would say the law was willfully violated. Choose your side. Ignorant or informed.

UPDATE III: Byron York and the absolute legality of the program:

"And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else."