Public Nuisance

Random commentary and senseless acts of blogging.

The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Thursday, December 22, 2005
In looking at the "Fact Sheet" put out by the RNC to justify President Bush's jihad against civil liberties, I couldn't help noticing that some points seemed to be a trifle misleading or simply odd.

Unreliable information put out by the RNC? Hey, I'm as shocked as you are. I assume it was a simple mistake made by an obscure staffer, who by now has surely realized his error and probably feels just awful about it. I just hope the poor guy hasn't been fired. But, since it's possible that in the press of new events mistakes can be overlooked even by organizations as dedicated to integrity as the RNC, I thought I might help them by pointing out some of the problems.

The first statement made is that "Presidents Bill Clinton And Jimmy Carter Both Authorized Search/Surveillance Without Court Orders". In support of this claim Executive Orders 12139 (Carter) and 12949 (Clinton) are cited. The citation from Carter is downright deceptive. Here is the RNC quotation given in full followed by the cited passage from the actual text:

President Jimmy Carter: "[T]he Attorney General Is Authorized To Approve Electronic Surveillance To Acquire Foreign Intelligence Information Without A Court Order ..."

Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

This would seem to be the warrantless wiretaps referred to frequently in recent discussions of FISA, allowing the government to tap first and get permission later. The language here is a bit confusing, since section 1802 athorizes, "electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" while 1801 states "with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be... retained for longer than 72 hours unless a court order under section 1805 of this title is obtained..." It appears that the warrantless search can continue for up to a year, provided that no American's communications are intercepted. What is clear is that Carter's order is intended to implement FISA and cannot be reasonably construed to permit surveillance otherwise barred by law.

The same is essentially true of Clinton's order, with the exception of the fact that it specifically allows for physical searches, while the original FISA anticipated only electronic surveillance. But Clinton refers several times to relevant sections of FISA and, while he is broadening the scope of allowed searches, doesn't appear to be modifying the procedures. Clinton subsequently requested, and got, amendments to FISA which explicitly allowed for physical searches under the existing FISA framework.

The RNC also quotes Byron York as claiming that Clinton asserted the same "inherent powers" that Bush does. As ThinkProgress has noted, this claim deliberately misconstrues Clinton's position.

The next section goes on to assert that Democrats were kept informed about the surveillance activites and are only complaining now. In a fairly standard device, an article from a major newspaper (the LA Times in this case) is quoted, seeming to indicate that the media is contradicting Democratic positions, when actually they're just quoting a GOP spokesliar who is attacking Democrats.

Senate Intelligence Committee Chairman Pat Roberts (R-KS): "For The Nearly Three Years [Rockefeller] Has Served As Vice Chairman, I Have Heard No Objection From Him About This Valuable Program ... Now, When It Appears To Be Politically Advantageous, Sen. Rockefeller Has Chosen To Release His 2 1/2 -Year-Old Letter. Forgive Me If I Find This To Be Inconsistent And A Bit Disingenuous."

What exactly is the argument being made here? Nobody disputes the authenticity of the letter Rockefeller wrote years ago, the very day he was briefed, expressing strong concerns about the program. Apparently because Rockefeller expressed those concerns to people actually responsible for the program rather than to somebody who felt no concern about the program in question and could have done nothing to stop it if he had, Senator Roberts concludes that Rockefeller must not have meant it.

There's more fun in the following quote. I reprint the section which appeared in the talking points in italics, with the remainder of the sentence from the actual article in bold

Roberts [Said] That As Recently As Two Weeks Ago, Rockefeller Had Expressed To Cheney His 'Vocal Support' For The Surveillance, a claim Rockefeller denied.

Another quotation cited to 'prove' that Democratic leaders in Congress were kept fully informed comes from a NY Times article for which you need no more than the headline, "Spy Briefings Failed to Meet Legal Test, Lawmakers Say" to guess, correctly, that the full article carries a message rather distinct from the brief citation given.

The final section discusses intelligence failures prior to 9/11. Two subjects are discussed, the failure to track 9/11 terrorists Hazmi and Mihdhar and the investigation of Moussaoui.

In the former case, the problem was not that the US government lacked sufficient information to identify Hazmi and Mihdhar as potential terrorists, it was that this information wasn't shared among appropriate agencies. This was made clear in the 9/11 Commission report itself:

In the 9/11 story, for example, we sometimes see examples of information that could be accessed-like the undistributed NSA information that would have helped identify Nawaf al Hazmi in January 2000. But someone had to ask for it. In that case, no one did. Or, as in the episodes we describe in chapter 8, the information is distributed, but in a compartmented channel. Or the information is available, and someone does ask, but it cannot be shared.[Final Report, 13.3]

THe final section is on the failure to fully investigate Moussaoui prior to 9/11. On this matter the noted counterterrorism expert Bill Kristol is quoted, followed by an excerpt from the 9/11 Report:

The Weekly Standard's Bill Kristol: Remember Moussaoui? Remember August 2001? The FBI Wanted To Go To The FISA Court To Get Surveillance Capabilities Based On What They Found On His Computer, And The Justice Department Decided No. Now, The Patriot Act Did Not Change That Standard Of FISA ...

Oh my, where to begin? First, as the very next passage makes clear, Kristol is wrong on the facts.

9/11 Commission Report: "The Agents In Minnesota Were Concerned That The U.S. Attorney's Office In Minneapolis Would Find Insufficient Probable Cause Of A Crime To Obtain A Criminal Warrant To Search Moussaoui's Laptop Computer.Agents At FBI Headquarters Believed There Was Insufficient Probable Cause. Minneapolis Therefore Sought A Special Warrant Under The Foreign Intelligence Surveillance Act To Conduct The Search ... FBI Headquarters Did Not Believe This Was Good Enough, And Its National Security Law Unit Declined To Submit A FISA Application." ("Final Report Of The National Commission On Terrorist Attacks Upon The United States," The 9/11 Commission Report, 7/22/04)

The FBI had Moussaoui in custody on an immigration charge. They weren't seeking permission to conduct surveillance, they wanted to physically examine his hard drive. (This would have been done using the Clinton expansion of FISA.) Why was there a problem in obtaining a FISA warrant to search the computer? A paragraph of the Report hidden by that ellipsis make this very clear:

To do so, however, the FBI needed to demonstrate probable cause that Moussaoui was an agent of a foreign power, a demonstration that was not required to obtain a criminal warrant but was a statutory requirement for a FISA warrant. The case agent did not have sufficient information to connect Moussaoui to a "foreign power," so he reached out for help, in the United States and overseas.

FISA was written during the Cold War, and aimed primarily at intelligence activities of the Warsaw Pact nations. It was a faulty tool against terrorism because it was designed only to address persons acting as agents of foreign powers. This weakness of FISA no longer exists; Congress has amended to Act precisely to make it more effective against terrorists who may not have connections to foreign powers. (This law will lapse if the Patiot Act isn't renewed, but like many other provisions, it could be made permanent at any time if detached from more controversial provisions.)

Kristol is right in saying, "The Patriot Act Did Not Change That Standard Of FISA", but right in a way that is narrow and highly misleading. According to the DOJ, "Investigators' ability to use FISA's investigative tools to pursue individual terrorists intending to commit acts of international terrorism was added after the USA PATRIOT Act but was tied to the Act's sunset provision..." So that standard has been changed, although Kristol would rather you didn't know. Under current law, agents would be able to obtain a warrant for Moussaoui's computer without exercising any 'inherent authority' to act lawlessly.