Posted 5:38 PM by Robert

Contra Adragna

UPDATE: The FBI has elected to relax its own standards for monitoring certain public spaces, like internet chat rooms and mosques. But to the civil rights establishment, September 11 has not occurred:

"The FBI is now telling the American people, 'You no longer have to do anything unlawful in order to get that knock on the door,' " said Laura Murphy, director of the American Civil Liberties Union's Washington office. "You can be doing a prefectly legal activity like worshiping or talking in a chat room, they can spy on you anyway."

So the ACLU objects to the FBI seeing what everyone else is entitled to see. That's "spying." This is representative of the kind of pathological myopia that afflicts the ACLU and other such Democratic aligned "civil rights" groups. And this kind of pathology is one reason the intelligence services have trouble doing their jobs.

Does Senator Leahy dissent?

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The Man Without Qualities has argued that liberal Congressional Democrats, past Democratic Administrations and their liberal media scriveners are mostly culpable for the decrepitude of the United States intelligence services prior to September 11.
Mr. Adragna originally stated that there was simply no reason for him to “simply disagree with [the] analysis” of the Man Without Qualities. Now, some might suspect that Mr. Adragna has back pedaled from that position by posting perhaps 200 inches of text addressing those points here, and here, and here and here and here. But Mr. Adragna has never actually written “I hereby absolutely and unconditionally back pedal” – so the reader is warned that he may still be “standing firm” on his position that there was no need to respond to someone so insignificant, notwithstanding his actual extensive and labored replies. Mr. Adragna appears to be one of those people who reacted at least internally to Bill Clinton’s “it depends on what the meaning of ‘is’ is” argument with: “Well, that’s right!”

FISA

Mr. Adragna's main argument is that the Foreign Intelligence Surveillance Act of 1978 (FISA) provided the intelligence services – especially the FBI – with all the tools they needed. He argues that Liberal Democratic support of the FISA in both the Congress and the Carter White House demonstrates that such liberal Democrats gave the right level of support to the nation’s intelligence services.

FISA requires, among other things, that an intelligence service show “probable cause” to a special court to obtain a warrant to search or invasively monitor a suspected foreign operative. This raises distinct questions: First, should the general standard for conducting such a search be “probable cause?”

This “probable cause” requirement limited the FBI's ability to search alleged terrorist Zacarias Moussaoui's computer, a search which might have changed the results of September 11. So a second question is: Was the problem in Moussaoui's case the statutory standard of “probable cause” or the way federal bureaucrats interpreted it (the latter being Mr. Adragna’s position)? Put another way: Was there in fact “probable cause” and should the people in the FBI have realized that?

To be effective a statute obviously must be crafted to operate within the limitations of what the human beings the statute affects can realistically be expected to achieve. To argue – as Mr. Adragna does – that the problem in Moussaoui's case was the people not FISA reflects a wilfully unrealistic view of what career bureaucrats can ever be expected to achieve as a matter of consistent routine. In this case, Mr. Adragna cites to Ms. Rowley – the FBI Special Agent recently anointed by the media as a sacred “whistleblower” – as authority for the existence of “probable cause” in Moussaoui's case. In fact, exactly because "probable cause" is such a strict standard, the matter is open to good faith dispute, as the New York Times points out:

“Several former and current officials said the F.B.I. legal counsel's office may have been correct, based on what was known at the time, in deciding not to apply for a warrant to search Mr. Moussaoui's computer. The office was not given any evidence that Mr. Moussaoui was acting on behalf of a foreign power, a requirement of the law.”

In fact, in her now-famous memo, Ms. Rowley actually avered preposterously to suggestions made in her field office that FBI superiors in Washington were working with bin Laden. Ms. Rowley attempts to distance herself from her own argument by describing it as “flippant” – but it was unquestionably an irresponsible item to include in her memo by any reasonable standard. This and other aspects of that memo indicate that she certainly cannot be taken as a standard for applied good judgment in this matter. But Ms. Rowley appears to be a good, intelligent agent. And the people she disagreed with in Washington were likewise good, intelligent agents. To expect more from the "people" in the FBI is absurd - FISA obviously needed fixing.

The “probable cause” standard inevitably will lead to a high level of denials of requests for warrants regardless of how well coordinated intelligence gathering becomes simply because the “probable cause” standard effects a balance appropriate to protecting the civil rights of American citizens – and therefore accepts more error in favor of those citizens than is tolerable with respect to non-citizens. The “probable cause” standard emerges from the Fourth Amendment – but the Fourth Amendment does not require the government to provide the same level of protection to citizens as non-citizens, although the nearly hysterical tone of many civil rights organizations historically aligned with the Democratic party suggest a belief in that quarter to the contrary. For example, as the ACLU puts it: “[O]nce here, even undocumented immigrants have … the right to privacy, and the other fundamental rights U.S. citizens enjoy” – which nicely and characteristically obscures the fact that aliens do not enjoy such “fundamental rights” to the same extent as U.S. citizens do.

Further, it is simply unrealistic and irresponsible to think that any federal agency – including the FBI - is going to ignore the opportunistic hostile posturing from the likes of Senator Leahy and liberal media critics such as Mr. Adragna – who complain about determinations of both the presence (‘ethnic profiling”) or absence (“radical fundamentalists”) of “probable cause” to the extent such complaining suits their political agenda of the moment. The existence and activity of such people further supports the need for a standard weaker than “probable cause” – as the Moussaoui case illustrates.

In lieu of “probable cause,” Mickey Kaus suggests that the standard to obtain a search warrant for someone not a U.S. citizen should be (i) presence in this country coupled with (ii) a belief that he's involved in some sort of crime; and maybe (iii) being legitimately under arrest. But why should any warrant be required at all? Why should the standard not be a simple, documented reasonable belief by the intelligence services that a non-US citizen is involved in some sort of crime, regardless of whether he is in the country or not. There is no reasonable question that under this standard Mr. Moussaoui's computer would have been searched without breaching or imperiling the rights of any American citizen. That is, if the FISA standard had been repaired, the FBI would have conducted its search. Messrs. Leahy and Adragna are badly wrong.

The extent of the detachment from reality implied by the Leahy/Adragna insistence on the “probable cause” standard can be seen by considering where we would be if Ms. Rowley had decided to conduct the search without the required warrant. Suppose she had done that? Are we prepared to apply the exclusionary rule to whatever evidence she would have (illegally) uncovered and let Mr. Moussaoui and (if she had stopped the September 11 attacks) the other hijackers, go free? If the Constitution requires that we have to pay THAT price to protect our civil rights, then it IS a suicide pact.