The Fog of FISA

Because FISA did not and does not apply to "foreign-to-foreign" communications, we can only speculate why it was necessary to obtain a FISA warrant for electronic surveillance in Iraq. The storytellers indicate that the reason a FISA warrant was necessary is that the electronic communications were being intercepted within the United States, but this contradicts the nonspefific information that was furnished by Assistant Attorney General for National Security Kenneth Wainstein (as noted previously) on March 3, 2008. Assuming that a FISA warrant was necessary, the facts establish that government officials waited until 10:00 A.M. (probably after they went to the International House of Pancakes for breakfast) on May 15, 2007 to discuss information that had been developing for three days, and then waited three more hours to decide that they had enough information to initiate electronic surveillance via an emergency request to the Attorney General. Then, rather than requesting the Attorney General to initiate electronic surveillance for this emergency, the government officials discussed the case for more than four hours before initiating the request to the Attorney General. Then, even though the Attorney General must have been aware of the drama that was unfolding in his own department, it took two additional hours to locate the Attorney General and obtain approval of the request to initiate electronic surveillance in this emergency.

Title 18 of the U.S. Code, Section 2702(b)(8), states:

"A provider described in subsection (a) may divulge the contents of a communication to a Federal, State, or local governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency."

 If the episode in question had domestic legal implications due to the location in which the electronic communications were intercepted, this statute would seem to be a classic fit for the Republican fairy tale, but no mention is made about any attempt to utilize this provision or to explain the reason this provision was not applicable to this situation. This entire ordeal reads like an episode from the Keystone Cops, and it is clear that the delay in surveilling the enemy combatants was not due to any deficiency in FISA, but instead was caused by gross incompetence and ineptitude among officials in the Department of Justice. As he engaged in diplomacy with Congress last year, it appears that Mike McConnell thought that he could play both good cop and bad cop by himself, but he now has lost most of his credibility with the Democrats, and it does not matter to the Republicans whether Mike McConnell is or is not credible.

THE WALL

The Republican propaganda against FISA has even included charges that the attacks on September 11, 2001 could have been prevented if FISA had not created a "wall" between surveillance for the purpose of gathering intelligence and surveillance for the purpose of gathering evidence of illegal activity. These accusations are the indirect result of complaints made by former FBI Minneapolis Division Chief Counsel Colleen Rowley, who had written a 13-page memorandum dated May 21, 2002, to FBI Director Robert Mueller, in which she complained about indifference and bureaucratic inertia exhibited by FBI Headquarters, which had refused to request a FISA warrant that Ms. Rowley had sought to permit access to the laptop computer of Zacharias Moussaoui (the so-called twentieth highjacker). It was the opinion of Ms. Rowley that the additional information which she could have obtained might have enabled the FBI to prevent the attacks on September 11, 2001. One of the more active defenders of the Terrorist Surveillance Program has been University of Virginia Law Professor Robert Turner, who provided substantial written testimony, related to the Terrorist Surveillance Program, to the Senate Judiciary Committee on February 28, 2006 and again on March 31, 2006. Mr. Turner and some others (such as Willaim Kristol, Gary Schmitt, and Rush Limbaugh) have blamed FISA for creating a standard for probable cause that was too difficult and cumbersome to accommodate the Moussaoui case, and Mr. Turner has criticized Ms. Rowley for not understanding that the information she furnished to FBI attorneys was not sufficient to establish probable cause to seek a FISA warrant. Colleen Rowley did not profess to be an expert on FISA or Constitutional law, but her memorandum to FBI Director Robert Mueller outlines information which, in conjunction with other information that had been furnished to FBI Headquarters by their Phoenix Office, should have been sufficient to establish probable cause to obtain a FISA warrant. Ms. Rowley's memorandum also outlines the lack of assistance received from, and lack of direction provided by, FBI Headquarters prior to September 11, 2001 in pursuing what should have been considered (even prior to September 11, 2001) an important investigation.

Mr. Turner notes that Congress amended FISA in 2004 to make it easier to classify a target of surveillance as an "agent of a foreign power", and (with respect to the Terrorist Surveillance Program) he quotes Lt. Gen. Michael V. Hayden, currently Deputy Director of National Intelligence and former Director of the National Security Agency, who has expressed the view that

"Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such."

Maybe Republicans can create a scenario in which Hurricane Katrina can be blamed on FISA. In February 2003 (after a series of hearings which included appearances by FBI Director Robert Mueller, FBI Special Agent Rowley, several other FBI employees involved in the Moussaoui investigation, and several experts on FISA), Senator Patrick Leahy (D-Vermont), Senator Charles Grassley (R-Iowa), and Senator Arlen Specter (R-Pennsylvania) issued a bipartisan report (Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures) which included a detailed analysis of the manner in which the FBI mishandled the investigation of Zacharias Moussaoui prior to September 11, 2001. This Senate Judiciary Committee report corroborated information furnished by Ms. Rowley about the failure of FBI Headquarters supervisory personnel and legal analysts to direct and assist the FBI field offices relative to the Moussaoui investigation; this Senate Judiciary Committee report noted that the FBI Headquarters had used an "unnecessarily high standard" for probable cause to avoid and delay pursuing a FISA warrant; and this Senate Judiciary Committee report was critical of the FBI's failure to request a FISA warrant in a situation in which the available evidence appeared to have been sufficient to support a finding of probable cause by the FISC. The attacks on September 11, 2001 did not occur because of limitations imposed by FISA, but succeeded due to a lack of vigilance on the part of the Clinton Administration, the current Bush Administration, intelligence-gathering agencies and law-enforcement agencies.

Paradoxically, some defenders of the Terrorist Surveillance Program have claimed that the surveillance was not illegal because the surveillance was for the purpose of gathering foreign intelligence rather than for the purpose of gathering evidence in a criminal investigation. This argument legitimizes the concept of a "wall" between surveillance for the purpose of gathering foreign intelligence and surveillance for the purpose of gathering evidence in a criminal investigation, but this argument was rendered meaningless by the The USA PATRIOT Act in 2001, which amended FISA to indicate that gathering foreign intelligence did not need to be the primary purpose of the surveillance but only needed to be a significant purpose of the surveillance. The first and only (so far) decision issued by the Foreign Intelligence Surveillance (FIS) Court of Review on November 18, 2002 involved certain restrictions which the FISC had placed on the government when the FISC granted a request for a warrant pursuant to FISA. These restrictions imposed by the FISA warrant were related to the need perceived by the FISC to separate surveillance for the purpose of obtaining foreign intelligence from surveillance for the purpose of a criminal investigation. The FIS Court of Review discussed this issue and concluded:

In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government’s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.

Later in this same decision, the FIS Court of Review stated:

The important point is–and here we agree with the government–the Patriot Act amendment, by using the word “significant,” eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses.
 

THE PRESIDENT'S INHERENT AUTHORITY

The Bush Administration maintains that it would endanger the national security to release any information about the Terrorist Surveillance Program in response to any lawsuits that have been filed or might be filed against the government or against the telecommunication providers that assisted with the Terrorist Surveillance Program, and this prevents the public from knowing the exact nature and extent of the Terrorist Surveillance Program. The President has threatened to veto the FISA rewrite if FISA does not provide retroactive legal immunity for telecommunication providers, and if the final version of FISA does not resemble more closely the evisceration of FISA he temporarily achieved when the PAA was enacted in August 2007. The fallback position for the President's legal advisors is their assertion that the allegedly defunct Terrorist Surveillance Program was legal because the President's inherent power (i.e., power which is alleged to be implied by the Constitution but which is not mentioned in the Constitution) as commander-in-chief (which is stated but not defined in Article II of the Constitution) authorized him to bypass the powers of Congress which are detailed in Section 1 and Section 8 of Article I of the Constitution. In the Report prepared by the Senate Intelligence Committee in October 2007 to accompany the Senate version of a more permanent revision of FISA, four Republican Senators (including the ranking Republican on the Senate Intelligence Committee) added a statement reiterating their belief that the Terrorist Surveillance Program was legal because the unwritten inherent powers of the President under Article II of the Constitution superseded the legislative power of Congress as expressed through FISA.

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