Man Without Qualities

Thursday, May 23, 2002

Scene 4: In Which The Man Without Without Qualities Faces The Prospect of Having His Head Bitten Off!

Mr. Adragna is "standing firm," as in Scene 4.

In the mean time, for people who like to do their homework in advance, here's a little something to chew on regarding the Foreign Intelligence Surveillance Act (FISA) of 1978, which Congress had to revise in the USA-Patriot Act late last year, specifically because FISA hindered intelligence gathering on Al Qaeda (scroll to page 33 or do an internal pdf search for "FISA"):

"Recognizing that a need would continue for related efforts by law enforcement agencies, the [Bush] Administration also pressed for passage of legislation to enhance their authority to acquire information on terrorist activities by monitoring various forms of communications in the United States and to detain non-U.S. persons suspected of terrorist ties."

" ...the Administration sought authority to make available to intelligence agencies foreign intelligence information derived from grand jury disclosures and criminal investigations. This provision generated significant controversy based on concerns that such transfers would encompass extensive and sensitive personal information obtained by law enforcement agencies being made widely available to
intelligence agencies. Some expressed concern about potential abuses, noting that such information could be related to “entirely lawful activities, business transactions, political relationships, or personal opinions."

"The resultant statute, the USA-Patriot Act (P.L. 107-56), eased restrictions on law enforcement agencies established in the Foreign Intelligence Surveillance Act (FISA) of 1978. FISA was modified to permit exploitation of changing information technologies–roving surveillance, pen registers, and trap and trace authorities. Furthermore, it permits the transfer of foreign intelligence information obtained from law enforcement sources to intelligence agencies with such transfers of information conducted in accordance with regulations established by the Attorney General in consultation with the DCI (and with exceptions if the Attorney General determines that disclosure would jeopardize an ongoing law enforcement investigation or impair other significant law enforcement interests)."

The same alert reader who provided the above link also observes that for the real down and dirty on FISA, there's this interview with Herbert Romerstein (author of The Venona Secrets) to be enjoyed:

Romerstein: ....Church put in motion a whole series of concepts, that you had to restrict your intelligence services, both your foreign intelligence service, the CIA, and your domestic security, the FBI, because they are the real enemy. They are "rogue elephants," they want to do terrible things to U.S. persons, and you’ve got to stop them. ....

In 1979 the Congress passed the Foreign Intelligence Surveillance Act [FISA]. This provided that the FBI had to get a warrant to wiretap somebody they knew to be a foreign intelligence agent or an agent of a "foreign power," which meant not only foreign governments but foreign entities that operated in the United States in ways that were detrimental to us.

That was the first hurdle put in the way of the intelligence services. As a result, the FBI now has to go to a court and ask for a warrant to do the wiretap. And they have to show that the person that they would like to wiretap is engaged in activities of a foreign power, such as terrorism and the like.

The liberal Democrats decided that this was not a big enough hurdle for the FBI to overcome, so they put up another obstacle to gathering intelligence through wire taps. One of the issues was, "What do you do with Mr. X, who has not engaged in spying in the past or has not engaged in terrorism, but is a member of an organization which has traditionally engaged in espionage or terrorism?"

The security-minded types felt this individual should be wiretapped also. But the liberal Democrats wanted a provision in the bill that said that you can wiretap only leaders of foreign powers that engage in espionage or terrorism activity, but not the rank and file.

In other words, under the law that passed, the FBI could wiretap bin Laden—if he had been in the United States—but not the guys who took over the airline. They would be considered "rank-and-filers."

[then congressman] Ashbrook had put in an amendment to cover rank-and-file members of foreign powers or foreign entities, but the chairman of the House Intelligence Committee, Eddie Boland [D.-Mass.], came over to us and said, "John, we’re giving you your amendment. We’re not going to fight it, but just add it to the bill." I said, "John, we won." But John said, "No, we lost, because if we voted on it and got a big enough vote, the House would have to fight for the provision in a Senate-House conference on the bill. But since we didn’t vote on it, they are going to throw it away in conference." And they did.

And so, in the law that eventually passed the Congress, the FBI was unable to wiretap a member of a foreign power engaged in hostile intelligence or terrorism, rank-and-file members of the Soviet controlled Communist Party, for example. ....

HE: According to that concept, what if a Sudanese dissident walks across our Mexican border?

Romerstein: As soon as he crosses the Rio Grande, he becomes a "U.S. person," with all the rights and privileges of a U.S. citizen. Therefore, why should that nice person be wiretapped just because he’s a member of an organization that has blown up American facilities abroad? Why should you expect that he might do something like that here and go get a warrant for wiretapping? You can’t wiretap him without a warrant. You have to convince the court that in fact this is an appropriate person to wiretap. You need probable cause.

HE: In other words, an Arab terrorist who has legal, or even illegal, immigration status in the United States, but who was not actually involved in the commission of a crime before flying an airplane into the World Trade Center, would not, under the law, be liable to a wiretap?

Romerstein: Yes, unless you had an informant who said this man says he’s going to commit an act of terrorism. Then you have probable cause, but not under the basis of membership in the group, but on the basis that he intends to commit the act.

HE: Let’s be even more precise. If the FBI knew this terrorist was a member of Osama bin Laden’s group, Al Qaeda, and went to the FISA judge and said we know he’s a member, though not a leader, of Al Qaeda, the judge, if he actually followed the law, would say, "That’s not enough, I won’t give you the warrant."

Romerstein: Not only wouldn’t the judge give the warrant, but the Justice Department wouldn’t even ask for the warrant. Unless the FBI comes in with massive evidence in the first place, they know they will be turned down. And this law, so far as I know, has not been revised in the area we’re discussing.

Mr. Adragna says that FISA is key to making his points. I can hardly wait to see what he has to say!

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