Two big events are occuring at the same time: the Moussaoui trial and the NSA inquiry. I've noticed alot of conservatives trotting out links like
THIS one to argue that the FISA statute stood in the way of the Moussaoui investigation. It did not.
I would invite anyone to read the
commission report for themselves and not rely on WS's selective quotes to determine whether the Moussaoui investigation was bungled. In particular, it says that Moussaoui was known to have links to Chechen rebels, but that:
The RFU agent told Joint Inquiry staff that, based on advice he received from the NSLU, he believed that the Chechen rebels were not a "recognized" foreign power and that, even if Moussaoui were to be linked to them, the FBI could not obtain a search order under FISA. The RFU agent told the Minneapolis agents that they had to connect Moussaoui to al-Qa'ida, which he believed was a "recognized" foreign power. (p. 321)
The reason the report put "recognized" in those scare quotes is that the FISA statute's definition makes no such reference in defining "foreign power" or of "agent of a foreign power." (TITLE 50, CHAPTER 36, SUBCHAPTER I, § 1801)
As I said before, the trouble was not found in the FISA statute itself but in beaurocratic hurdles that went above and beyond the requirements of the statute. Later, the commission report noted:
The thicket of procedures, reviews, and certifications regarding FISA information and contact between foreign-intelligence and criminal investigators led to confusion and error. An FBI attorney noted in an interview that, as detail was added to certain FISA applications, the Court began to expect that level of detail in all applications. Thus, an application to renew a surveillance of an intelligence officer of a foreign government that might have originally required two paragraphs in support grew to many pages, increasing the possibility of error in details. (p. 366)
This was the reason that Congress put so much pressure on the DoJ to clear up unnecessary hurdles and bottlenecks in processing FISA requests in the wake of the committee report Indeed, the Judiciary Committee issued a report in 2003 titled "FISA Implementation Failures":
The oversight review this Committee has conducted during the 107th Congress has uncovered a number of problems in the FISA process: a misunderstanding of the rules governing the application procedure, varying interpretations of the law among key participants, and a break-down of communication among all those involved in the FISA application process. Most disturbing is the lack of accountability that has permeated the entire application procedure.
The report, which really must be read to fully understand all issues, included this passage driving home the point that the problem wasn't with the statute but with its implementation:
So deficient was the FISA process that, according to at least one FBI supervisor, not only were new applications not acted upon in a timely manner, but the surveillance of existing targets of interest was often terminated, not because the facts no longer warranted surveillance, but because the application for extending FISA surveillance could not be completed in a timely manner. Thus, targets that represented a sufficient threat to national security that the Department had sought, and a FISA Court judge had approved, a FISA warrant were allowed to break free of surveillance for no reason other than the FBI and DOJ's failure to complete and submit the proper paper work. This failure is inexcusable.
As noted HERE, in June 8, 2004 hearings John Ashcroft was grilled by the committee on his efforts to correct these implementation errors:
[SEN.] DEWINE: The FISA statute is one of the most important weapons we have in the fight against terrorism. In fact, really, I'm not sure there's anything that the Justice Department does that's more important than administering the FISA statute. Unfortunately, it appears that we're still having problems with the FISA process.
On the plus side, it seems as though the Justice Department has been more aggressive in filing FISA applications, with the result that last year we saw record number of applications: over 1,700 according to your testimony. Unfortunately, however, many applications are still sitting and waiting to be processed. The staff of the independent 9/11 commission tells us, and I quote, "The application process, nonetheless, continue to be long and slow."
And that process is still subject to, and again I quote, "bottlenecks."bSimilarly, Mr. Attorney General, on May 20th, at the last FBI oversight hearing held by this committee, I asked FBI Director Mueller how well he thought the FISA statute was being utilized. Frankly, he seemed a little uncomfortable with the question. And he didn't want to go into much detail because some of the information, understandably, might be classified. But what he said was this -- and I must tell you, Mr. Attorney General, I was very concerned by what he did say, and let me quote -- and this is a direct quote -- "We still have concerns. There is still frustration out there in the field in certain areas where, because we've had to prioritize, we cannot get to certain requests for FISA as fast as perhaps we might have in the past," end of quote.
So you've got the independent 9/11 commission saying that. You've got the FBI director with his very candid comments to our committee. Other information that I receive indicates there's a bottleneck. You know, I understand that you're doing a better job. You've put more resources into this. But governance is priorities. And I don't know anything that is more important that you all are doing than getting these FISA applications through.
And if I was somebody out in the field and I had worked up a FISA application and I thought it was the most important thing in the world and I'd worked it up and I had everything lined up. And it was sitting there, sitting in Washington, and I couldn't get it through, I would be very discouraged. I think it has a -- I think it has to have a demoralizing affect on the people out in the field.
And there's still a problem there. I mean, there is still a problem. And I guess my question is what can you do to put more resources on this? I just think, Mr. Attorney General, you've got a ways to go on this. And I just don't think there's anything more important that you're doing. And I just think you need to put more resources on it and prioritize this.
ASHCROFT: Let me thank you for raising this issue. It's a matter of great concern to me. The first or second thing that happened to me after I got into office was a call from the FISA court saying that we needed to renovate the FISA operation. We did. And that was early in the year 2001.
And then when September 11th hit, the demand for FISA coverage skyrocketed. It's increased by -- well, the numbers really aren't very helpful. We can say by the number of petitions up by 85 percent, but some of these are very substantial multiple surveillance petitions so that it doesn't really reflect the true numbers total.
I think there a couple of things that we wanted to do. We want to restructure the operations so that we don't have a duplicate effort, one on the FBI side, and then have it done all over again when it comes to Justice and redone. And we want to be able to work promptly by avoiding those kind of bottlenecks.
In April of this year, I combined -- in response to these issues, and part of them I think you had written about or conferred with me about, as I recall... we created a special group of attorneys to look at this out of the Office of Intelligence Policy and Review to cut down on the costs of moving across the street back and forth to the FBI and moving from the field to Washington.
And we are making progress. The problem is remediating. We have fewer pipeline FISAs now than before but we're not home yet. And so we will continue to work in that respect. I have asked, in each of the past three weeks, the chairman of this task force for reports and the reports are encouraging.
I would just say this: that we are prioritizing among FISA applications... so that at least the most promising of those applications are the ones that would be first attended to. But, frankly, it's not easy always to know where you're going to get the most, the best intelligence. And it is not a situation where I'm confident in saying, "Well, oh well, we don't have to worry about that one. That might not be as productive..."
[DEWINE]: And, Mr. Attorney General, my time is up. But I think that's just the point. I think you are prioritizing and you have to, but I think it's dangerous when you have to prioritize. I think you're doing a better job, but all the information I can get indicates that we've still got a ways to go. I think you all can do a better job. And I just think that you need to put more resources on this. And I would just encourage you to put more resources on this.
I don't know that there's anything more important that you're doing in the war on terrorism. And I don't know how to say it any stronger: You've got to put more resources on this; you've got to do a better job.
It was the process not the statute. A big con talking point is definitely going to be this stuff about Moussaoui. But the problem wasn't with the statute, rather with beurocratic bottlenecks and hurdles related to implementation of the statute. Further, even if there were problems with the statute the answer would be to work with Congress to fix them and then have them reviewed by the Courts for compliance with the 4th ammendment. Bush went around the constitutional process. He complains about judges legislating from the bench but he thinks that he can legislate and judge from the oval office. That's not how our constitution is structured.