OpEdNews - Page 3 of Article: Patrick Fitzgerald: We've Been Taken For A Ride

[Author's note]: At the time, both Scott and Fitzgerald were reading from transcripts of Attorney General John Ashcroft's previous appearance before the House sub-committee.

Rep. Scott: "He (Ashcroft) said it's a criminal investigation, and then (Scott noting Fitzgerald made a notation on Ashcroft's transcript)-- "you kind of put in parentheses..."

"...without having to fool with the probable cause." [Emphasis added.]

Scott (continuing): "Now, I suppose is "probable cause" the problem, Mr. Fitzgerald? I mean, is the requirement that we get probable cause the problem? I mean, if we didn't have to fool with probable cause-if we could start listening in and searching without probable cause, we could probably do a better job for law enforcement."

Fitzgerald: "I'd love to answer that question. It's not the problem. There's two misconceptions, I think, that are going on in the public debate. The first is that there's no "probable cause requirement" in FISA.

Fitzgerald continuing: If the person is the agent of a foreign power; which means that they knowingly engage in intelligence gathering -- let me speak from the perspective of a terrorism investigation. To get a probable -- to get a FISA for a terrorism investigation -- for (possible) sabotage or international terrorism, or activities that are in preparation thereof, on behalf of a foreign power...."

Scott: "Wait a minute. Keep reading."
Fitzgerald: "Okay. Or they knowingly aid or abet any person in the conduct of activities, or they knowingly conspire."
Scott: "Keep reading."
Fitzgerald: "That's the end-or as described in Subparagraph (a), (b), and (c). I'm talking about terrorism."
Scott: "Oh, oh. Oh, you're talking about terrorism...."
Fitzgerald: "That's what I said."
Scott: "-as far as the FISA...."
Fitzgerald: "I said "terrorism."
Scott: "Well, what about the foreign-foreign intelligence? You have probable cause (if) you can get some foreign intelligence. What about foreign affairs?"
Fitzgerald: "Okay, it's not probable (just) because you can get foreign intelligence. It's probable cause (if) that person is an agent of a foreign power."
Scott: "Right"
Fitzgerald: "You have to certify, in addition, that you're going to gain foreign intelligence, my point being--"
Scott: "Wait, wait, wait. Whoa, whoa. What is foreign intelligence?"
Fitzgerald: "Foreign intelligence, that's one of the things you have to get. But before you can even certify that you're getting foreign intelligence, you have to establish that the person is an agent of a foreign power. Under the terrorism statute, there is no--"
Scott: "Well, wait, wait a minute. Wait a minute--"
Fitzgerald: "Let me just--"
Scott: "Well, no, no, because people keep coming here, time and time again-this isn't the first hearing we've had."
Fitzgerald: "I know."
Scott: "They come and say you need a FISA to protect from terrorism."
Fitzgerald: "Yes."
Scott: "And then you point out that you can get a FISA warrant for things-have (sic) nothing to do with crimes, have nothing to do with terrorism, if you can get foreign intelligence. The example I've used is--"
Fitzgerald: "And I disagree with that. And if you could let me explain, because you do need--"
Scott: "Okay, okay, well, let me make my point--"
Fitzgerald: "Okay."
Scott: "-so you know what you're disagreeing with."
Fitzgerald: "Okay."

Scott: "If I've got probable cause that somebody's an agent of a foreign government, and we're about to negotiate a trade deal, and I can get their bottom price on steel, can I get a FISA wiretap?"

Fitzgerald: "That answer? I'll be blunt. I don't know. [Emphasis added.] Okay. because I-what I'm saying is I don't--"

Scott(continuing): "The answer everybody else has given is "Yes." And that's how easy it is, and how unrelated to crime and terrorism these FISA wiretaps are. And if you can-if that's all you've got to get, to get into somebody's home, to get a wiretap and all this, then it's a lot easier to run a criminal investigation WITHOUT HAVING TO FOOL AROUND WITH WHETHER A CRIME IS ACTUALLY BEING COMMITTED." [Emphasis added.]

Fitzgerald: "Except that, if that's what you are doing, you'd be lying and making a false statement when you certified that the purpose of the investigation was to gather foreign intelligence. And when you try to bring that person into court for some drug crime and say, 'We had a FISA wiretap,' and show it to the judge, for something else, it would be out of it. Let me make this point--"

Scott: "Then what was the Attorney General talking about when he said, if the primary purpose of the FISA wiretap wasn't foreign intelligence, what was it? Why did he say criminal investigation? >[Emphasis added.] And if I could get to the second part of what I wanted to say, it's most of those predicates require probable cause of activities which themselves are crimes when people commit terrorist acts. The point being, I think that the primary purpose itself is a fiction. And I'd like to explain that, because I think it's important."

Fitzgerald: "It may be that people say early on 'you don't know what the primary purpose is.' Let me give you an example. If a CIA officer came into my office tomorrow and said, 'We have sensitive information coming from overseas that someone's going to put a bomb in the middle of Chicago next week, and take lives,' we would have the CIA in the room sharing their information. We would put the FBI in charge. We'd have several-lots of agents in Chicago. We'd have the Chicago Police Department. And we'd say, 'Let's stop this bombing. Let's get the information, and let's go prevent it.'"

[Fitzgerald merely repeating here what he had already offered the sub-committee.]

[Further on.]

Fitzgerald: "In my personal experience, I've seen more incidental involvement of gang members or street criminals. For example, the plot where they were trying to blow up the bridges and tunnels in New York City: they had to get stolen cars; they had to get guns; they had to get things like that; where in the course of an investigation they were dealing with street-level criminals, just because they needed fake passports; they needed cars; they wanted to get detonators. So they got into this with the criminal underworld because they needed to get logistics. But it was more of a-the plan was being done by the terror ring, and they were reaching out to other people just to get logistics."

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