Man Without Qualities

Saturday, June 08, 2002

EXTRA! Saint Rowley Falls From Empyrean Rose Petal! Meuller Talks to Congress!

There is a fine Stuart Taylor article in the June 8 National Journal which expertly explains how the FBI was paralyzed by an ingrained fear of racial profiling and the much-too-high "probable cause" requirement for obtaining a search warrant imposed by the Foreign Intelligence Surveillance Act - a standard which Taylor thinks, contrary to Coleen Rowley, the FBI hadn't met.

CIA and FBI incompetence and organizational flaws may have played a large part in the intelligence failures before September 11. But thinking that Congressional and Executive reforms of the FBI and CIA will be enough to fix the problem in the future is wilfully unrealistic. Taylor says that the FISA and our ideas about profiling should be changed. The Man Without Qualities is in full agreement.

There doesn't seem to be a free National Journal web site, or i would link to it. In the alternative, I would attempt a more extended summary with highlights. But there's no need, since KausFiles (It's the Law, Stupid - Why Coleen Rowley was wrong.) has naturally already done a predictably able job of just that (complete with subtle, witty asides!).

In a related vein, the transcript of Mr. Mueller's recent Congressional testimony has some interesting material:

HATCH: ....Mr. Mueller, as I understand it, the Patriot Act has worked quite well so far, but there is one area where you're having difficulties, and that's FISA requests. We're currently--to get a warrant, there's a requirement of proof of association with the foreign power. Am I right on that?

MUELLER: There is a requirement under the FISA statute that we demonstrate a belief that the person who is under scrutiny and for whom we wish to obtain court-ordered interception is a, quote, "agent of a foreign power." And that has been defined as including an individual who is associated with a terrorist group.

.... prior to September 11 the 19 or the 20 hijackers, it would have been very difficult, because we had--in looking at it, trying to go back we had very little information as to any one of the individuals being associated with...

HATCH: Foreign power.

MUELLER: ... a particular terrorist group.

One of the issues in the Moussaoui set of circumstances was whether or not the evidence was sufficient to show that Mr. Moussaoui was associated with any particular terrorist group. If you talk to the agents--and I know we've had Ken Williams and other agents up briefing the Congress--I believe the agents will tell you that one of the problems they have in this area, which we believe Congress ought to look at, is the requirement that we tie a particular terrorist to a recognized terrorist group.

....Our problem comes in trying to show that a particular individual is connected to a specific, defined--in a variety of ways--terrorist group. I mean, once we get a connection with Al Qaeda, for instance, even though it is not a foreign power, Al Qaeda is sufficiently distinct group so that we can get the FISA that we need.

But we have problems where you have a lone wolf, for instance, who may be out there who we think is a threat, but we have difficulty tying to any particular defined terrorist group.

HATCH: Well, if we try to change that, I presume a lot of civil liberties groups and persons will be very much against making that change.

MUELLER: I can't speak to that, Senator. But I do think it is something that we need to look at and that Congress should take a look at.


FEINSTEIN: ....Let me take the FISA area. It has come to my attention that at least one major case that I won't specify, the warrant never left the FBI. It never went to the Department of Justice, it never went to the OIPR, where the attorneys are.

I've read the--Mr. Freeh's memo of April the 15th which changed the FISA process, I think based on problems that prior FISA warrant requests had that were egregious, let me say, and so he wrote a memorandum that was very complicated, very difficult, I think, to carry out.

MUELLER: Well, let me just go back--the, what they call, I think, the Woods changes that are reflected, I believe, and I am not certain the date, but Mr. Freeh's memorandum, relate to assuring the accuracy of the document that is going to be presented to the court.

And the difficulty we have here is we've got one FISA court situated in Washington, but the persons who are drafting the affidavits and have the information from the investigations are out in the field. And so that is appropriate to assure that there is a certification from the agent in the field as to the accuracy of the document before it goes to the court.

Later still:

Kyl: One, I would like to specifically elicit your views...about the legislation that Senator Schumer and I introduced yesterday, that would make one small but very important amendment to the FISA warrant definition of foreign agent to solve the problem you've identified, that a lone actor out there, a person that you cannot necessarily tie down as a member of the Al Qaeda organization or Hezbollah or some other group or working directly on behalf of the specific foreign government, all you'd have to do is prove that that person was a foreign individual, and you have probable cause to believe that they're involved in terrorism.


DEWINE: ....But I would like to make a comment. It seems to me that all the decisions--or the decisions that are made in regard to probable cause at the FBI, at Justice Department, ultimately come back to two things: One is the statute, but then, also, how that statute is interpreted by the FISA court.

I remember when I was a county prosecutor that the police would come in and want a search warrant.... And I would tell them, "Judge so and so won't accept it." And that was my answer. "That's not enough." And I was guided by the Constitution, but I was also, frankly, guided by what the judge I dealt with every day, I knew he would accept or he would not accept.

And I just think that is something that we need to keep in mind as we judge whether or not there is probable cause here, is that we need to--it is important for us, at some point, to look at how it has been--how the FISA law is actually being interpreted and, therefore, what impact it has on the people at the FBI and how Agent Rowley's--people who she has to kick it up the line to.

Let me--while we're talking about FISA, let me make also a comment, if I could, and ask for your brief comment about something else, and that is Senator Kyl and Senator Schumer's bill that they are introducing which would change the FISA law.

There is an interesting article in, I believe, today's "Wall Street Journal" that quotes Philip Heymann, who served as President Clinton's deputy attorney general. And he said that that legislation does not go far enough. And he suggests this. He is quoted as saying that authorities should be able to monitor non-U.S. persons based on a reasonable suspicion that they are engaged in terrorism, not the higher probable cause standard, as the amendment proposes.

I think that is something that we need at least to all look at. We are dealing with people--we're not dealing with U.S. citizens. We are not dealing with legal aliens. We are dealing with non-U.S. persons. And it seems to me that, when we have--if we had reasonable suspicion that they were engaged in terrorism or about to be engaged in terrorism, most Americans, I think, would think that we should grant that search warrant, that we should grant that warrant.

So, I don't know if you want to comment on that or not or if you want to just pass. I will accept either answer at this point.

MUELLER: I think it is something we definitely ought to look at with the department and evaluate whether this is, as far--whether this is the proposal that we should back.

DEWINE: Well, I will accept that answer. And I think it is something that we ought to at least look at. I think we need to understand how FISA really works in the real world. We also need to understand exactly--or have a debate about where we think we should be, what we should be doing in this, in the world we live in today, in regard not to U.S. citizens, but in regard to people who are not U.S. citizens and people who are not legal U.S. aliens.

MUELLER: And as I indicated before, this is a problem and we're looking for solutions to address this problem. And I know that the department will have the formal opinion on that, but we are looking for a solution for this problem.

Somehow, despite Mr. Adragna's self-professed and heated concern for "completeness," he seems to have omitted these quotes from the transcript when he excerpted it.

Surely an innocent oversight?

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