Fee, Fie, Foe, FISA, I Smell the Mendacity of Democrat Judges

Judges on Surveillance Court To Be Briefed on Spy Program

By Carol D. Leonnig and Dafna Linzer
Washington Post Staff Writers
Thursday, December 22, 2005; Page A01

The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"

Such comments underscored the continuing questions among judges about the program, which most of them learned about when it was disclosed last week by the New York Times. On Monday, one of 10 FISA judges, federal Judge James Robertson, submitted his resignation -- in protest of the president's action, according to two sources familiar with his decision. He will maintain his position on the U.S. District Court here.

Other judges contacted yesterday said they do not plan to resign but are seeking more information about the president's initiative. Presiding Judge Colleen Kollar-Kotelly, who also sits on the U.S. District Court for the District of Columbia, told fellow FISA court members by e-mail Monday that she is arranging for them to convene in Washington, preferably early next month, for a secret briefing on the program, several judges confirmed yesterday.

Two intelligence sources familiar with the plan said Kollar-Kotelly expects top-ranking officials from the National Security Agency and the Justice Department to outline the classified program to the members.

The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.

The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrantless eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information.

Still, Bush and his advisers have said they need to operate outside the FISA system in order to move quickly against suspected terrorists. In explaining the program, Bush has made the distinction between detecting threats and plots and monitoring likely, known targets, as FISA would allow.

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

Gee, i wonder who that anonyous "government official" was, some left-over political hack from the Clinton era, a useless government bureaucrat on the Federal dole. What an absurd statement. The reason for the need to bypass the FISA court in these cases is simply a matter of time. Not time for the judge to make the approval, time to provide the information FISA requires for one of these taps. This is what ids required for a FISA warrant:

(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the
President of the United States and the approval of the Attorney
General to make the application;
(3) the identity, if known, or a description of the target of
the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by
the applicant to justify his belief that -
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic
surveillance is directed is being used, or is about to be used,
by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information
sought and the type of communications or activities to be
subjected to the surveillance;
(7) a certification or certifications by the Assistant to the
President for National Security Affairs or an executive branch
official or officials designated by the President from among
those executive officers employed in the area of national
security or defense and appointed by the President with the
advice and consent of the Senate -
(A) that the certifying official deems the information sought
to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to
obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by
normal investigative techniques;
(D) that designates the type of foreign intelligence
information being sought according to the categories described
in section 1801(e) of this title; and
(E) including a statement of the basis for the certification
that -
(i) the information sought is the type of foreign
intelligence information designated; and
(ii) such information cannot reasonably be obtained by
normal investigative techniques;
(8) a statement of the means by which the surveillance will be
effected and a statement whether physical entry is required to
effect the surveillance;
(9) a statement of the facts concerning all previous
applications that have been made to any judge under this
subchapter involving any of the persons, facilities, or places
specified in the application, and the action taken on each
previous application;
(10) a statement of the period of time for which the electronic
surveillance is required to be maintained, and if the nature of
the intelligence gathering is such that the approval of the use
of electronic surveillance under this subchapter should not
automatically terminate when the described type of information
has first been obtained, a description of facts supporting the
belief that additional information of the same type will be
obtained thereafter; and
(11) whenever more than one electronic, mechanical or other
surveillance device is to be used with respect to a particular
proposed electronic surveillance, the coverage of the devices
involved and what minimization procedures apply to information
acquired by each device.

Yep, all of that just to tap a brief call from a phone in Afghanistam and America. The FISA system was set up to deal with matters from a 30 year old technological standpoint. Satelite and cell technologies have rendered the FISA law useless in tracking these terrorists.

As for Judge Colleen Kollar-Kotelly, you guessed it, she's another Clinton appointee. Who knows maybe she's in earnest, but I wouldn't bet the farm. We've seen far too often what these Liberal judges think about involving their own personal political opinions in making their decisions. We saw it in the Florida Supreme Court in 2000 when they chose to tell the states executive branch to disregard state law and continue to count the votes, in direct violation of the Constitution, as we saw when they were twice reversed by the SCOTUS.

Full Story: Democrat judges want in on the act as well

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