Man Without Qualities

Sunday, May 26, 2002

One must move with the times!

One must move with the times – and this time the times have caused Mr. Adragna to finally post some of his thoughts the federal intelligence services – and, in particular, on the Foreign Intelligence Surveillance Act (FISA) and its effect on the intelligence gathering capabilities of the United States. Well, actually, that doesn’t seem to be entirely accurate. What Mr. Adragna really seems to have done is to have visited with a Democratic Congressional aide in full, agitated spin cycle – a truly breathtaking experience in reality-bending to which all citizens should submit once in their lives, although the long-term effects of repeated exposure on the mind is troubling to say the least. It appears that while a happy prisoner of the resulting partisan rapture Mr. Adragna has for the most part carried the water of the sad spinner and poured it unfiltered into the engrams of QuasiPundit. Refreshing. Of course, the most revealing aspect of a Democratic Congressional aide providing such an extensive spin briefing is the indication that the Democrats correctly sense their immense vulnerability in this area.

Down here on the planet’s surface it’s Memorial Day Weekend, and in the abode of the Man Without Qualities that means Cub Scouts! This has been time spent discovering the self-inflating sleeping pad and acquiring a fine appreciation of just how good camping tents and minor analgesics have become in the intervening years – and the charms of a group of excited eight-year-old boys in full pursuit of the hapless salamander! So I haven’t really had time to obtain my briefing from spinning Congressional aides. Even a last minute call into Senator Jeffords – who I felt would surely console me given the company he’s identifying with recently – met only with rejection. Indeed, when I identified myself his sputtering assistant directed me to regions not normally associated with long term residence of that particular company and implied that the Good Senator was at that very moment perhaps converting water into apple cider at a Cub Scout-free, New Age ceremony in the woods just outside of Rutland.

But we must do the best we can with what we have! And while the Man Without Qualities hasn’t had a Congressional briefing, I have received some pretty nifty e-mails that I’m just itching to share. I’ll return to this matter a little later, but in the mean time, it is a good reality check to focus on the differences between what the FBI had to do with FISA in place in comparison to what it could do without FISA. In particular, without FISA there would now be no fussing over whether or not the FBI had “probable cause” to obtain a warrant to bug a foreign national who turned out to be an apparent terrorist working with al Qaida.

And since Mr. Adragna mentions the Wen Ho Lee case, it seems only appropriate to share Senator Leahy’s version of that interaction – which, curiously, does not seem completely in accord with Mr. Adragna’s ruminations:

Statement of Senator Patrick Leahy
Ranking Member, Senate Judiciary Committee
At Hearing of Subcommittee on Administrative Oversight and The Courts On
The Counterintelligence Reform Act of 2000
March 7, 2000


This legislation was crafted in response to perceived problems in the investigation of nuclear physicist Wen Ho Lee.


First, the Justice Department's demand in the summer of 1997 for additional investigative work by the FBI has been misconstrued as a "rejection" of a FISA application for electronic surveillance. FBI officials first consulted attorneys at DOJ on June 30, 1997, about receiving authorization to conduct FISA surveillance against Lee. The request was assigned to a line attorney in the Office of Intelligence and Policy Review (OIPR), who, appreciating the seriousness of the matter, drafted an application for the court over the holiday weekend. A supervisor in the OIPR unit then reviewed the draft and decided that further work by the FBI would be needed "to complete the application and send it forward." Further discussions then ensued and two additional draft applications were prepared.

In August 1997, FBI agents met again with OIPR attorneys about the FISA request. The OIPR supervisor testified at a Governmental Affairs Committee hearing on June 9, 1999 that "[f]ollowing that meeting, the case was put back to the Bureau to further the investigation in order to flesh out and eliminate some of the inconsistencies, to flesh out some of the things that had not been done."


Pursuant to the terms of the FISA statute, intelligence surveillance against a United States person may only be authorized upon a showing that there is probable cause to believe: (1) that the targeted United States person is an agent of a foreign power; and (2) that each of the facilities or places to be surveilled is being used, or about to be used by that target. 50 U.S.C. §§ 1801(b)(2), 1804(a)(4).


The OIPR attorneys who pushed the FBI for additional investigative work to bolster the FISA application for electronic surveillance of Wen Ho Lee were right – the evidence of probable cause proffered by the FBI was simply insufficient for the warrant.

Third, the Justice Department was right not to forward a flawed and insufficient FISA application to the FISA court. Some have suggested that the Lee FISA application should have been forwarded to the court even though the Attorney General (through her attorneys) did not believe there was probable cause. To have done so would have violated the law.

The FISA statute specifically states that "[e]ach application shall require the approval of the Attorney General based upon [her] finding that it satisfies the criteria and requirements . . . ." 50 U.S.C. § 1804 (a). The Attorney General is statutorily required to find that the various requirements of the FISA statute have been met before approving an application and submitting it to the court.


The handling of the Wen Ho Lee FISA application does not suggest a flaw in the definition of probable cause in the FISA statute. Instead, it is an example of how the probable cause standard is applied and demonstrates that effective and complete investigative work is and should be required before extremely invasive surveillance techniques will be authorized against a United States person. The experienced Justice Department prosecutors who reviewed the Lee FISA application understood the law correctly and applied it effectively. They insisted that the FBI do its job of investigating and uncovering evidence sufficient to meet the governing legal standard.

The Counterintelligence Reform Act of 2000 correctly avoids changing this governing probable cause standard.


In addition, Section 5 of the bill would require the adoption of regulations to govern when and under what circumstances information secured pursuant to FISA authority "shall be disclosed for law enforcement purposes." I welcome attention to this important matter, since OIPR attorneys had concerns in April 1999 about the FBI efforts to use the FISA secret search and surveillance procedures as a proxy for criminal search authority.

Now here's what Leahy admitted (just as Mr. Romerstein said, as indicated in a prior Man Without Qualities post), post 9-11. Contrary to what Mr. Adragna has written, Senator Leahy just doesn’t seem to have thought FISA was intended to make things easier for the intelligence services:

The most significant legislative result of the Church Committee investigation was the Foreign Intelligence Surveillance Act of 1978 which required court orders for national security electronic surveillance in the United States. No longer did the Executive branch have exclusive control over the vast powers of U.S. intelligence to conduct wiretapping, bugging, and other communications monitoring in this country. Surveillance was limited to foreign powers and agents of foreign powers, and the statutory probable cause standard for targeting an American as an "agent of a foreign power" required a showing of clandestine intelligence activities, sabotage, or international terrorist activities on behalf of a foreign power....Americans could not be considered "agents of a foreign power" on the basis of their lawful business or political relationships with foreign governments or organizations.


In 1979 Attorney General Benjamin Civiletti testified before the House Judiciary Subcommittee on Constitutional Rights ....On the issue of FBI sharing with the CIA, Attorney General Civiletti said "you have to be extremely careful in working out, pursuant to the law, the information which is being exchanged, what its purpose is, how it was obtained and collected, so that you are not inadvertently, out of a sense of cooperation or efficiency, perverting or corrupting the fact that the CIA’s main duty is foreign intelligence, and they have no charter, no responsibility, and not duty performance, no mission to investigate criminal acts in the United States."

The bill we are passing today makes potentially sweeping changes in the relationships between the law enforcement and intelligence agencies. In the current crisis, there is justification for expanding authority specifically for counterintelligence to detect and prevent international terrorism. I support the FBI request for broader authority under FISA for pen registers and access to records without having to meet the statutory "agent of a foreign power" standard, because the Fourth Amendment does not normally apply to such techniques and the FBI has comparable authority in its criminal investigations. However, I have insisted that this authority to investigate U.S. persons be limited to counterintelligence investigations conducted to protect against international terrorism and spying activities and that such investigations may not be based solely on activities protected by the First Amendment. None of the changes in FISA would authorize investigations of Americans for the broader, more ambiguous purpose of collecting "foreign intelligence" generally. In that respect, the bill adheres to the basic principles recommended by the Church Committee.

The gravest departure from that framework, and the one with most potential for abuses, is the new and unprecedented statutory authority for sharing of "foreign intelligence" from criminal investigations with "any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official." The Church Committee warned of the political abuse of the dissemination of intelligence from domestic investigations.

I’ll have more to say later on the liberal Democrats’ imaginative reinventions.


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