Centerfield

I just came across this explanation of the problems with FISA and the FIS Court. Read the compelling story of the problems and turf wars faced by a dedicated FBI agent trying to get permission to look at Zacarias Moussaoui's computer after being notified of his suspicious behavior (i.e., taking flying lessons that did not include the chapters on taking off or landing). Bureaucratic hurdles like these do not disappear and vanish simply because bad things happened or the Patriot Act is passed. Turf battles, institutional cultures, bureaucratic inertia, all these things hinder the President's ability to change the way things are really done.

You don't trust the president. I don't trust the FISC. That isn't distrust of particular members, but an institutional distrust. As regular, normally appointed federal judges, they are focussed on crime and after-the-fact prosecutions. That is their nature, that is the prism which forms their basic reactions and procedures. Since 9/11 we have been fighting a different beast, and I could care less about criminal prosecutions, and think this is the appropriate way to deal with terrorists once we find them. Courts and wars do not mix well.

This is not to say that we throw our civil liberties out the door once a war starts. Of course we don't. But unless and until the ACCUSERS of the President (including those spineless, snivling bureaucrats puffing up their self-importance by leaking highly classified information) provide some actual evidence that the President is misuing this program against garden-variety domestic criminals or political opponents, then I have no concern at all that my civil liberties have been harmed in any way.

Posted by: PatHMV at December 28, 2005 01:05 PM

Pat;
from the link to the NRO

FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant.

Is the problem with the court or the paperwork? I have to admit I'm only partially sympathetic to this specific case.

Posted by: c3 at December 28, 2005 01:27 PM

...the Bush Administration will spin FISA as being a roadblock to National Security...

And if they have national security results to show for it (and they do) they have a great case for just that. By the way, the case Pat cites as the appropriate way to take care of terrorists (a Hellfire missile up the tailpipe) also killed the reported recruiter and ringleader of the Lackawanna Six, referenced in the thread below.

And as I have said since the story broke, good luck spinning that as "unjustifable." "Cuddle-a-terrorist" is a losing message.

Chris, the FBI had to meet FISA court standards and second-guessing to look at that computer. Had they been able to look at it when they captured it, 9-11 might have been prevented. Moussaoui was the reported "20th hijacker."

Posted by: Tully at December 28, 2005 01:37 PM

Chris, it's pretty much impossible to separate the court from the paperwork. If the court sends a warrant application back and says, "we want to see X, Y, and Z before approving this", then henceforth, the bureaucrats will always prepare X, Y, and Z before submitting that kind of an application again, even when the court doesn't specifically ask for it. If the bureaucrats notice a trend of applications being turned down or modified or delayed when they lack X, but rapidly approved when they include X, then they will henceforth always include X. You'll never see any formal proclamation from the court imposing a particular paperwork requirement, but that doesn't mean the court wasn't in fact imposing it.

At the same time, sometimes bureaucrats and politicians impose the burdensome paperwork and hurdles, such as the Jamie Gorelick wall between foreign intelligence and domestic law enforcement on all types of information sharing. Which was responsible for any given paperwork requirement? It's going to be impossible to tell.

Faced with known, proven dangers posed by terrorists and intractable, tied-to-the-past bureaucracies and second-guessers, I admire the President for doing what he felt necessary to protect us.

Posted by: PatHMV at December 28, 2005 02:10 PM

"The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation... since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history."

Is there anything to spin in this story?

Posted by: cthruu at December 28, 2005 04:03 PM

cthruu,

I don't think that there is anything to spin in this story, I think that the facts speak for themselves. Did you also notice that the last two years were when the 'extensive number of modifications were required'? This just happens to coincide with Robertson's first couple of full years on FISA. He was appointed in may of May of the year before when they had the most rejections. He is also the one that 'withdrew' from FISA in 'protest'.

It seems a bit odd that the 'bar' gets raised during wartime and sits lower in peacetime.... especially since we were actually attacked on our own soil by people that were living in the US at the time.

Posted by: debsay at December 28, 2005 04:17 PM

Unfortunately, if this story gets bigger the Bush Administration will spin FISA as being a roadblock to National Security ...

Partisan hearsay? Didn't the 9/11 commission already say that very thing in some form? What happened to all the suggestions that Bush was ignoring their reccomendations? Does anyone know in fact what they said in regards to FISA? I disagree with your assessment, most on both sides from what I can tell, including Congresswoman Jane Harman who was briefed as ranking minority member of the intelligence committee, are currently backing the President or at least waiting for harder evidence to be critical of the program. It is those who benefit politically that seem to be making the biggest deal about this.

Both sides aren't always all wrong, Ryan.

Posted by: Mathew at December 28, 2005 04:47 PM

My point was that no one can draw any conclusions based on this data, because no one has access to the details. If FISA was unfairly blocking wiretaps in the last two years, then yes, there's a case for Bush going around them. If Bush wanted to wiretap political opponents for sending "mixed messages" to the enemy, then he should suffer legal repercussions for abusing the system. (I'm not sure how that last is spinning this as "cuddle a terrorist.")

Without transparency in Government, the public has nothing to base its decisions on. That hurts Democracy. This data made public, without knowing the merits of the individual cases, is only going to fuel speculation on both sides without productive results. Just as I'm watching people spin this data in this forum--it foreshadows what I expect to see everywhere.

Both sides don't even have the legitimacy of being wrong. Without the data there is no falsifiable hypothesis.

Posted by: Ryan Somma at December 28, 2005 05:55 PM

And the program is LESS EFFECTIVE if everybody, including the terrorists, know about it. And the more details are disclosed, the less useful it will be. I don't want my government doing too much in secret, but in a real shooting war, I'm all for keeping secret the specific methods we are using to protect ourselves. I want the leakers thrown in jail.

Posted by: PatHMV at December 28, 2005 06:01 PM

If Bush wanted to wiretap political opponents for sending "mixed messages" to the enemy, then he should suffer legal repercussions for abusing the system. (I'm not sure how that last is spinning this as "cuddle a terrorist.")

Who in the world has alleged that the program is/was being abused to spy on domestic opponents of the administration's policies? Talk about spin....

I'll clarify my statement. If the administration can show that suspects have been prevented from performing terrorist acts either here or abroad as a direct result of this program, regardless of any legal quibbles about same, they have a good "public" case that the FISA procedure was standing in the way of saving lives. And if they have that public case, trying to excoriate them for the program WILL be perceived by a good chunk (a majority) of the electorate as "cuddling terrorists."

How you get from that to allegations of the administration using the program to spy on domestic political critics is beyond me.

Posted by: Tully at December 28, 2005 07:32 PM

Once again, Tully, I'll restate my point for the third time:

You don't know.

It's that simple. You don't know. You don't know why the administration bypassed FISA. You have come to the conclusion that FISA is the one in the wrong without even having access to the details of the rejected cases.

That's my point. It's really that simple. You don't know.

Now maybe, just maybe, FISA actually had a legitimate reason for rejecting those wiretaps. I was not saying Bush actually was abusing the system, I'm saying we don't know.

debsay posted that the reason FISA rejected the wiretaps is because there was a Bush-hating pundit in their midsts. Should I take your unsupportable conclusion that FISA is in the wrong here as evidence that you agree with her? That's equally hyperbolic.

Pot meet kettle.

Posted by: Ryan Somma at December 29, 2005 08:13 AM

Now with your spinning of my logic out of the way, let me address an important point you made:

If the administration can show that suspects have been prevented from performing terrorist acts either here or abroad as a direct result of this program, regardless of any legal quibbles about same, they have a good "public" case that the FISA procedure was standing in the way of saving lives.

I'll grant you partial credit, because this is only half of the equation. The Administration will convince those already convinced with your example. The Administration must also demonstrate that FISA's oversight was a hinderance and their rejections were unjustified in order to convince everyone else that doing away with oversight is justified.

I am very doubtful this will happen, because, as I have noted three times now, that would require access to the details of the individual rejections. So long as we have Americans who believe National Security takes precedence over everything, then the Administration has no need to ever even engage this debate.

Thus, as I have noted before, both sides will speculate either FISA or the Bush Administration is corrupt without anything to support their claims.

Is this really that hard to understand, or are the Bush-supporters in this thread just really really hypersensitive?

Posted by: Ryan Somma at December 29, 2005 08:26 AM

Ryan, ONCE AGAIN, I'll point out that I, and many others, don't WANT to know the details, because we understand that some counter-terrorism programs are more effective when conducted in secret. YOU and the Bush-haters are the ones makinga accusations against the President, claiming that this program is bad, or has enough potential to be bad to justify an investigation which would, effectively, kill the usefulness of the program. So that's why YOU are the one who needs to provide more than what you have done so far.

We DO know that the New York Times, which hates the President and his administration, spent more than a year working on the story it broke. A dozen people, some of whom were clearly national intelligence employees intimately familiar with the program, broke several laws to tell about aspects of the program they didn't like. NONE of these sources have pointed to any evidence of any actual abuse of this program, any use of the program for political purposes or to track "ordinary" criminals. For me, that is more than sufficient to make up my mind about the program.

I'm not going to bother responding any more, because you've made it clear with your last post that you don't think we're listening to you, and I know that you are not listening to us, so we'll just have to agree to disagree. I will add that it is quite insulting for you to suggest that anybody disagreeing with you on this issue is a hypersensitive, unthinking Bush supporter.

Posted by: PatHMV at December 29, 2005 09:02 AM

I didn't "spin" your "logic" Ryan, I quoted you. A completely unsupported speculative statement backhandedly alleging domestic use of the intercept program for spying on political enemies. Did I miss a sarcasm tag?

My statement wasn't spin, it's about a political reality that applies regardless. I already said it twice here, and several times in other places. But hey, keep misrepresenting it. Or go back and re-read it. My phrasing was most specific. (The latest Rasmussen poll seems to support that statement of political reality and the accompanying logic, by the way.)

There are things I do know. I know why the admin says they bypassed FISA. I know that the number of FISA rejections and modifications rose, out of proportion with the rise in applications, which is consistent with the admin claim. I know that the same stories bringing the program to light included claimed successes coming from the same sources cited for the program's existence. I know which two successes they were specific about. And I know that no one has produced any known cases of abuse such as what you cited in your completely unsupported statement, which I quoted. I'm reasonably sure that the NYT would have cited same, had they any knowledge of same, and that they are certain to have looked very hard for same--just as legions of reporters in America have certainly been seeking since the story broke. I actually agree with your initial post.

So I know that there is a limited fact set on one side that supports my statement about the way the issue plays to the electorate, and no fact set at all available that supports the statement of yours I quoted. Which is about the only part I actually disagree with--I think you stepped well beyond the bounds of your own reasoning there. The knee-jerkers of both sides will stick to their guns regardless of the data, but politically speaking, the Big Middle will opt for national security over the speculative 4th Amendment "rights" of terrorists.

I'll rephrase my statement once again for you. If the admin can point to one single success in preventing a terrorist attack on American soil as a result of the program (and they already have, Iyman Faris) then the Big Electoral Middle will not give one hoot about the fine points of technical FISA violations or conflicting constitutional authorities. Without a factual showing of major abuses ala the Nixonian/Johnsonian type you stated, there is NO downside for the admin with the swing vote on this issue. Making it a major loser for those pushing the issue and hollering "Impeachment!" unless they can make that factual showing.

Your point that there is no upside for the admin with the True Believers is correct. You can't shake the Bush base without that showing of major abuse, and you simply can't shake the PDS anti-Bush faction at all. I'm looking at the political impact with actual moveables in the middle, which appears to be as I stated.

Posted by: Tully at December 29, 2005 09:45 AM