Man Without Qualities

Monday, June 10, 2002

UPDATE: Saint Rowley Continues Fall From Empyrean Rose Petal!

FURTHER UPDATE:At least Mr. Adragna appears to have abandoned (or at least isn't now talking about) his prior bizarre suggestion that John Ashcroft could have just certified all the FISA requirements as fact under oath - thereby almost certainly committing perjury from what we know now, since even Mr. Adragna and his supporters now seem to be admitting that such a clear demonstration was impossible - in order to obtain a "physical search" warrant of dubious value in conducting a legal electronic scan of the suspect computer! So it seems Mr. Adragna may have made SOME minimal intellectual progress - if only sub silentio and without understanding this new inconsistency. Unless Mr. Adragna thinks its OK to certify facts to a federal court under oath when one only knows things are "probably true" or there is a "fair chance" they are true. Most people don't think that's right. And a lot of prosecutors would perk up and get right to work if they found out it had happened and could prove it.

Mr. Adragna has been adamant in his insistence that it is hugely important to get the FISA standard just right - and to understand that the FISA standard is not "probable cause" as Agent Rowley defined it (that is, "more likely than not"). That has been important to Mr. Adragna because, among other things, Agent Rowley's memo says "probable cause" is too high a standard - which it is. These are things important to him.

The Man Without Qualities has argued forcefully that the real problem with FISA is a standard that requires FBI lawyers to engage in such fine-spun analyses over a too-high standard with respect to non-US persons, just as Professor Heyman and many other sensible people now understand. That standard should probably be the long-established "reasonable suspicion" test (and since Mr. Adragna and his co-believers have trouble understanding conspiracy law, that includes "reasonable suspicion that the suspect is himself a terrorist or is an agent of or a co-conspirator with, any foreign terrorist group") - provided the suspect is NOT a US person.

But Mr. Adragna and his supporters continue to stand on the burning deck - complaining that nobody is listening to them. And that last part is not a bad thing.


Postcript: There is zero chance that either Director Mueller or Stuart Taylor ever believed that FISA requires demonstration of anything "absolutely" or "as a fact" or under the "reasonable doubt" standard. Nor is there any reasonable way to construe what either of them has said or written to produce that result. Each of them is a sophisticated legal expert who is fully aware of the probabilistic nature of the "probable cause" standard. It is some measure of the naivete and intellectual desperation of Mr. Adragna and his supporter that they are driven to tilting at such windmills of their own invention.


Jonathan Turley

More commentators are realizing that Agent Rowley's memo is not Holy Writ (or even good law). On May 30 Jonathan Turley wrote on the pages of the Los Angeles Times against this sad consequence of media whistle-blower-worship.

Some - But Not All - Dots Are Being Connected?

In another development, Mr. Adragna now copies some of the portion of the transcript of Director Meuller's testimony presented by the Man Without Qualities in an earlier post with a note of Mr. Adragna's lapse. Mr. Adragna now presents his copy without addressing his prior omission. That's OK with me. But he's still omitting a lot posted here earlier that would be needed to meet his own standard of "completeness."

Seems to Have Lost a Dot

Incidentally, Mr. Adragna adopts a suggestion that Mickey Kaus has "lost it." But it is Mr. Adragna who seems to have a continuing problem with distinguishing that which must be proved from the applicable standard of proof, as indicated, for example, in this excerpt (Mr. Adragna's comments are in his brackets) :

"HATCH: Thank you, Senator Leahy."

"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?"

"[Wrong! The requirement is to show "a fair probability 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".

"[The demonstration of a belief that the person is a "foreign agent" needn't show that the person is in fact a "foreign agent", but only that the person probably is a foreign agent.]"

Granting Mr. Adragna all his premises, it is remarkable that he writes in one sentence that FISA requires a showing that a suspect "probably was" an agent of a terrorist group, where one bracketed sentence earlier he said that "the [FISA] requirement is to show "a fair probability that..." Which one is it that Mr. Adragna believes to be the FISA standard?

Also, since Mr. Adragna is one of the nation's most devoted worshipers of Agent Rowley's memo, we should note that her memo says "'probable cause" mean[s] that the proposition has to be more likely than not, or if quantified, a 51% likelihood."

Doesn't that read as if Agent Rowley thinks by showing that a suspect "probably was" an agent of a terrorist group the FBI would have demonstrated FISA "probable cause?"

Most people think "probably was" (as Mr. Adragna describes the FISA standard) means the same thing as "more likely than not" (as Agent Rowley defines "probable cause").

To Mr. Adragna and his like the security of the United States rests on a linguistic nuance even he can't consistently maintain, and which seems to be even more subtle than "what the meaning of "is" is."

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