Posted 3:35 PM by Robert

We Have Met the Enemy and He is Us!

From the Op-Ed pages of the New York Times Nicholas D. Kristof tenders a column of surprising intellectual honesty and introspection. Mr. Kristof, at least, sees that the liberal Democratic camp has created an atmosphere hostile to the intelligence services and impairing their ability to function. Now if only he would start to name names and get into the particulars. He might start with eight years of Clinton-Gore mismanagement and move on to decades of liberal Democrat shennigans in the Congress. That might be a service to the voting public in November.

The real test will be: What do we do NOW. In that regard, Mr. Kristof should be keeping an eye on the likes of Senators Leahy and Daschle - and a sharp pen in the ready.

Posted 12:25 PM by Robert

Peggy Noonan's Curious Take II

UPDATE: This AP newstory is characteristic of the obtuse media coverage of the Rowley memorandum and its author. The story makes no mention that the reporter made an effort to interview or even identify anyone in FBI(Washington) involved with the matter, or anyone at either the US Attorney office in Minneapolis or FBI(Washington) who worked with prior requests by Agent Rowley to obtain searches based on her concept of "probable cause" in the past.

Agent Rowley's memo states that one of her Washington contacts had told her that they didn't want her to disrupt other investigations. But the AP reporter makes no effort to determine what those "other investigations" might have been. Nor does the reporter make any effort to determine whether Agent Rowley might have disrupted other investigations in the past by taking a too-aggressive position as to what constitutes "probable cause' and related concepts.

As an aside: Agent Rowley is described as a 'triathelete." Does that suggest a personality that is more or less aggressive than the average? Just asking.


____________________________________________________________________________________________


One of the Man Without Qualities' admirable readers-who-write (or writing-readers) writes to ask why I so discount Ms. Noonan's suggestion that a bin Laden mole may have been behind Agent Rowley's (or was it Mulder's?) difficulty in obtaining the FISA warrant she desired.

It normally helps in these matters to go back to the original, which in this case is the portion of Agent Rowley's memo reading:

"During the early aftermath of September 11th, when I happened to be recounting the pre-September 11th events concerning the Moussaoui investigation to other FBI personnel in other divisions or in FBIHQ, almost everyone's first question was "Why?--Why would an FBI agent(s) deliberately sabotage a case? (I know I shouldn't be flippant about this, but jokes were actually made that the key FBIHQ personnel had to be spies or moles, like Robert Hansen, who were actually working for Osama Bin Laden to have so undercut Minneapolis' effort.) Our best real guess, however, is that, in most cases avoidance of all "unnecessary" actions/decisions by FBIHQ managers (and maybe to some extent field managers as well) has, in recent years, been seen as the safest FBI career course. Numerous high-ranking FBI officials who have made decisions or have taken actions which, in hindsight, turned out to be mistaken or just turned out badly (i.e. Ruby Ridge, Waco, etc.) have seen their careers plummet and end. This has in turn resulted in a climate of fear which has chilled aggressive FBI law enforcement action/decisions. In a large hierarchal bureaucracy such as the FBI, with the requirement for numerous superiors approvals/oversight, the premium on career-enhancement, and interjecting a chilling factor brought on by recent extreme public and congressional criticism/oversight, and I think you will see at least the makings of the most likely explanation."

As the reader can see, Ms. Rowley characterizes the mole explanation as a "joke," "flippant" and something other than a "real guess." She will have to be asked further about this, given the uproar the memo has created, but at this juncture it is clear Agent Rowley did not intend her suggestion seriously. If she did, she could have simply included a line such as "while this explanation was offered as a joke here in the field, I suggest that the Washington office may wish to look into the matter solely for the sake of completeness." But she didn't.

So as a preliminary matter, Ms. Noonan is diverging seriously from what appears to be Agent Rowley's meaning. But then why not diverge from the meaning of the rest of Agent Rowley's memo and just throw it away? What is it about this bit that authorizes us to disregard its plain meaning? On a more general note, Agent Rowley also describes her concerns arising "[d]ue to the frankness with which I have expressed myself and my deep feelings on these issues." Does an informed person take at face value an intelligence agent's statement that she is acting out of "frankness" and "deep feelings?" Intelligence agents are paid and expected to be other than that when the need arises. And it is also worth noting that although Agent Rowley's memo is interesting and useful, it is also spectacularly self serving.

Contrary to Agent Rowley's suggestion, a hypothetical mole could operate nothing like Robert Hansen did (not surprisingly, since she made her suggestion as a joke). Hansen was just a spy whose role was to act as normally as possible within the FBI, and then take information. What Agent Rowley is positing is someone who makes spectacularly twisted decisions in full view of other, non-conspiring experts without them ever catching on. In other words, Agent Rowley is conjuring someone who is an evil genius - more like a Palpatine than a Hansen.

Nor could such a mole have been acting alone within FBI(Washington). As Agent Rowley's memo makes clear, the decision to deny her warrant request appears to have been a group effort. So we need several evil geniuses - where George Lucas had to make due with only one!

And what about the CIA? Agent Rowley's memo says that the field office eventually tried to go around FBI(Washington) by asking the CIA to help - but after getting the story from the field office the CIA refused to help. If the matter was a clear as Agent Rowley suggests, why would the CIA not act? Were they in cahoots with bin Laden, too?

Further, Agent Rowley's frustration at getting other people in law enforcement to agree with her concept of "probable cause" (the point that held up her FISA warrant) was not limited to her FBI(Washington) superiors. She had similar problem with the local United States Attorney (which was not the entity that held up her FISA request), as she writes:

"[A]lthough I thought probable cause existed ("probable cause" meaning that the proposition has to be more likely than not, or if quantified, a 51% likelihood), I thought our United States Attorney's Office, (for a lot of reasons including just to play it safe) in regularly requiring much more than probable cause before approving affidavits, (maybe, if quantified, 75%-80% probability and sometimes even higher)..."

Are the people at the Minneapolis United States Attorney's office also in on the "conspiracy." After all couldn't we say d'apres Agent Rowley "Why?--Why would an assistant United States attorney deliberately sabotage a case?" And it appears not to have just been this one case with which Agent Rowley had such problems with "sabotage."

The last portion of the memo quoted above rather suggests that Agent Rowley may have had something of a reputation within both the US Attorney office and FBI(Washington) of being rather more relaxed in her concept of "probable cause" than those other people felt comfortable with. The existence of such a reputation would certainly help explain FBI(Washington)'s reluctance to see things her way - and would also help explain why she might not have been optimistic about working things through the US Attorney's office, either. Once the CIA made a few calls, such a reputation would also help explain what happened in that quarter.

Can a conspiracy be imagined? Of course it can. A foolish consistency is the hobgoblin of little minds - and the most foolish consistency of all is the ready belief in conspiracies.

Posted 12:27 AM by Robert

Peggy Noonan's Curious Take

Peggy Noonan has a curious column on FBI culpability in OpinionJournal today. I say "curious" because Ms. Noonan takes Ms. Rowley's suggestion that people in the FBI's Washington office might be bin Laden conspirators vastly more seriously than I have taken it, and vastly more seriously than anyone else I have seen writing about the topic take it. Ms. Noonan says:

"This is no laughing matter. When an FBI field operative who is the chief legal counsel of her office tells the head of the FBI in Washington that they've been wondering, out in the field, if spies or moles made the fateful decisions, she is saying something huge. She is saying she thinks it is possible that spies within the FBI thwarted attempts to stop or diminish the attacks of Sept. 11. And she wants the FBI director to know this. She uses the word joke, but she knows what she's doing. She's saying: This may be true. When she put this information in a memo that she knows she herself will soon hand-deliver to the Senate Intelligence Committee, she is telling Congress, the press and the people to consider the possibility that spies or moles had some part in the attack on America."

Of course, if "she is telling Congress, the press and the people to consider the possibility that spies or moles had some part in the attack on America," why does she refer to the suggestion as "flippant"? Shouldn't that be the part of the memo in one-inch type?

I don't mean to be unkind to Ms. Noonan, who I greatly respect, but unless she knows something she's not revealing, the serious suggestion that FBI(Washington) was in a conspiracy with bin Laden is the kind of thing one should take up with one's alien abductors or the voices coming from one's teeth.

Also curious is Ms. Noonan's assertion that "You can read the entire [Rowley] memo on Time magazine's Web site." Of course, you cannot do that - the TIME website clearly states that the memo has been edited.

And that leads to the third curious aspect of Ms. Noonan's effort: She correctly identifies the French intelligence contribution as key to whether the FISA "probable cause" standard was met. The Rowley memo also lays emphasis on that intelligence. But the version of the Rowley memo that appears on the TIME website contains almost no material particulars of that French intelligence. The memo does say that FBI (Washington) severely disagreed with Ms. Rowley's interpretation of that intelligence. But then, Ms. Noonan does not actually say that she is convinced that "probable cause" was demonstrated - although she seems to suggest that it was.

I fully agree with Ms. Noonan that "the FBI is supposed to be full of people with the sense and toughness to work around irresponsible demands and limitations, and not just fold in the face of potential heat. They're not supposed to be complete weenies in the FBI. They're supposed to have some guts and common sense."

But, on the other hand, I do not expect the FBI to be the way it should be after submitting for eight years to the tender mercies of a PC, liberal Democratic President who for years was in - and whose Attorney General was in - a virtual death-duel with the FBI's head. Does Ms. Noonan mean that she expected those eight years to have had no effect? I do not think Bill Clinton would have deliberately undercut the FBI's anti-terrorism capability as some form of revenge for Mr. Freeh's recalcitrance, but neither was Mr. Freeh's relationship with either Ms. Reno or Mr. Clinton such that one would expect the FBI to be in the best of shape now.

Ms. noonan also says: "You know when the FBI finally OK'd a search? On Sept. 11--after the attacks. And the bureau gave its approval based on the same evidence it had rejected in August, excluding the information from French intelligence." But this is definitely not what Agent Rowley says in her memo. She says that the warrant was sought and obtained based on the same evidence rejected in August plus the events of September 11:

"Notably also, the actual search warrant obtained on September 11th did not include the French intelligence information. Therefore, the only main difference between the information being submitted to FBIHQ from an early date which HQ personnel continued to deem insufficient and the actual criminal search warrant which a federal district judge signed and approved on September 11th, was the fact that, by the time the actual warrant was obtained, suspected terrorists were known to have highjacked planes which they then deliberately crashed into the World Trade Center and the Pentagon."

Are we suppose to think that the events of September 11 were not substantial evidence? How could Ms. Noonan get it so wrong? By her reasoning are we supposed to suspect that her egregious error is evidence that she's in league with bin Laden? But I am being flippant!

Seriously: Does the full Rowley memo spell out the French intelligence? Has Ms. Noonan seen the full memo? Or the French intelligence? She is well connected.

Posted 11:34 PM by Robert

Mail's In!

I read that some other bloggers receive nasty, ignorant mail (poor Sarge!). But the Man Without Qualities is constantly amazed by the Quality of the readers who write. Here is a sample, received in response to the post titled "Racial Profiling of Arab Americans and September 11." Regardless of whether you agree with the writer, wouldn't you like to have someone like him around when you have something significant on your mind and want to talk about it?

Mr. Musil,

I enjoy your blog. But I disagree with the post in subject.

1. I remember campaign 2000 well. Bush was clearly and openly pandering to Arabs in Michigan. Yes, only citizens could vote. Bush never tried to differentiate between Arabs citizens and non-citizens in his pandering. Not that differentiation would have work. Immigrant communities are generally concerned for their legal non-citizens just as much as for citizen members. Concern for illegals is a little lower but not by much.

2. In many situations, airport security is one of them, it is impossible to separate citizens from non-citizens. How do you know, visually, without document check, difference between Arab who got citizenship last year and his brother who did not?

It is a disgrace that FBI supervisors in Washington refused to look through flight school rosters. Mueller's defense of that decision is despicable. As many people have pointed out, Mark Steyn is among them, that if one limits oneself to a few obviously Arabic names, one could have worked through list in a couple days. How would you know Abdulah Truck-Bomber Said, a citizen, from Mowan Jet-Bomber Zogby, an immigrant?

3. As a recent CIS study shows, terrorists come to America by many ways. Some are naturalized citizens, some permanent residents, some students, some illegals. Takes every kind. There were several Arab naturalized citizens involved in the first WTC bombing attempt.

An active intelligent service would insert 1 active or sleeper agent among 100-1000 immigrants. As aside, KGB most surely has followed this pattern, it means that there are
300-3000 former(?) KGB agents in LA alone.

If terrorists follow this patterns there are hundreds or thousand of sleepers in US. Anyone without criminal record, and under Democratic administration people with criminal record as well, can become an US citizen. There is no reason to believe that citizenship oath will make a sleeper into upstanding citizen.

Unfortunately, as virulent anti-Israel and anti-semitic demonstrations and a total lack of pro-American, anti-terrorist ones have shown, there are tens may be hundreds thousands of terrorists sympathizers among Muslims in this country. In short 5 years most of them will be citizens.

4. I'm leaning towards view that Bush believes in PC and multi-culti. He is pandering to any immigrant group he can lay his hands on, wants yet another amnesty for illegals, 'Islam is religion of peace' business, etc, etc. Bush keeps on Norm Mineta, an incompetent politically correct fanatic. We have to assume that Bush approves the fact that Mineta's goons will search 10 Utah grandmothers before checking one young Arab.

5. My view is that PC and multi-culti ideologies are not compatible with security of US populace. It is my believe that support for these ideologies is truly bipartisan, from Kennedy to Bush, from Boxer to McCain. I hate to think that it might take many more thousands dead Americans before the curse of these ideologies is removed. It boggles my mind that removal of Marxism in Eastern Europe was less bloody.

Regards,

[name withheld for lack of express authorization]

Posted 8:11 PM by Robert

Contra Adragna III

Mr. Adragna now produces an increasingly dizzy whirl of arguments, including:

(A) Because Janet Reno authorized a warrantless search of the residence of Aldrich H. Ames, the FBI must have had authority to search Mr. Moussaoui's computer; and

(B) "After the search of the Ames residence, FISA was amended to cover physical searches"; and

(C) "So, how is it that the statute prevented a search when the Court upholds the legality of warrantless searches irrespective of the statute "so long as the primary purpose of the investigation was foreign intelligence gathering”?

Well, whatever authority Ms. Reno used to "authorize" her warrantless of the Ames residence, nobody in her position today could rely on FISA, as amended, to authorize such a search for the simple reason that Mr. Ames was and is a "US person," unlike Mr. Moussaoui - and the portion of FISA Mr.Adragna has been quoting only applies to people who are not "US persons." So the Ames case (and Ms. Reno's actions in it) doesn't seem to be relevant here. [To authorize a FISA warrantless search the Attorney General must certify under oath and penalty of perjury that "there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person."]

Mr. Ames was a high-ranking official of the CIA, which creates unique national security issues not at all involved in foreign terrorist search cases. Worse, while Mr. Adragna's writing is increasingly agitated and unclear, it appears that he may now be arguing that the Attorney General can authorize warrantless searches of anyone - United States person or not - "so long as the primary purpose of the investigation was foreign intelligence gathering." If that is the case - and he seems to be writing just that - then it is a great understatement to say that he is very seriously misinformed. Suffice to say that a warrantless search of a suspect high CIA official would not trouble most informed American, including federal judges. To extend that mechanism to ALL Americans "so long as the primary purpose of the investigation was foreign intelligence gathering" calls into question the very existence of the rule of law - and I would be astounded if the Court (which, of course, means the United States Supreme Court in correct usage) ever has or ever would authorize such a sweeping and monstrous principle.

I also have to remark on Mr. Adragna's continuing strange over-reliance on Ms. Rowley's memo. Her reasoning is far from persuasive in many cases. Mr. Adragna reproduces this choice bit from her memo:

"For example, at one point, the Supervisory Special Agent at FBIHQ posited that the French information could be worthless because it only identified Zacarias Moussaoui by name and he, the SSA, didn't know how many people by that name existed in France. A Minneapolis agent attempted to surmount that problem by quickly phoning the FBI's legal Attache (Legat) in Paris, France, so that a check could be made of the French telephone directories. Although the Legat in France did not have access to all of the French telephone directories, he was able to quickly ascertain that there was only one listed in the Paris directory. It is not known if this sufficiently answered the question, for the SSA continued to find new reasons to stall."

Well, according to WorldPages there is only one person named Anthony Adragna in New York City - so by Ms. Rowley's reasoning in the above footnote that person in New York must be the Anthony Adragna of QuasiPundit and the FBI can make that representation to the Foreign Intelligence Surveillance Court (FISC) and certify to that effect? Or maybe Mr. Adragna thinks this would be sufficient basis for Mr. Ashcroft to certify under oath and penalty of perjury that the QuasiPundit Anthony Adragna is the same person as the Queens Anthony Adragna? Also, to her credit, Agent Rowley continually points out that her memo is informed and colored by "20-20 hindsight," a point which at least one Mr. Adragna omits to take into account.

Mr. Adragna has not abolish and cannot abolish the fact that if the FBI officers in Washington had been acting under a lower statutory standard than FISA "probable cause" they would have authorized the search. That is exactly the effect (the "effect" being the difficulty in obtaining the warrant and not, of course, the horrors of September 11) those such as Senator Leahy, President Carter and the liberal media intended to achieve - and they were completely successful.

But Mr. Adragna does get one thing very right: It is of utmost importance to change the way the FBI was run by the Clinton-Gore Administration for eight years Such change takes time. There was no time to do that meaningfully prior to September 11 - and to the extent the problem at the FBI was a "people problem," it was a Clinton-Gore "people problem." Also, Mr. Meuller's post-September 11 behavior - the main and entirely justified focus of the Rowley memo - is highly questionable, and effective change may require his resignation notwithstanding that he took over from Clinton's Mr. Freeh only on September 4. Meaningful change will require not only time but the executive leadership completely lacking in the prior Administration and the full cooperation of both the House and the Senate. That means the voters are going to have to make some changes in the Senate - and there is no better place to work than with Senators Daschle and Leahy, the latter even Mr. Adragna says he is not defending in this matter. And there are plenty more liberal Democrats in the Senate for the voters to weed out starting in November.

Posted 5:00 PM by Robert

Racial Profiling of Arab Americans and September 11

The Man Without Qualities generally thinks OpinionJournal's Best of the Web gets most things pretty close to right. But with respect to Best of the Web's recent take on KausFiles' comments, which links to earlier comments by Tom Bray, I think Best of the Web misses a beat.

Specifically, KausFiles correctly observes that the Bushies should argue that "Dukakis-like civil-libertarian concern with the privacy rights of non-citizens produced a statute [FISA} with what now seems an excessively high standard of 'probable cause' the FBI had to meet before it could obtain the Moussaoui search warrant."

But Best of the Web says:

"One problem with this: As our Tom Bray noted way back in October 2000, candidate Bush himself denounced 'profiling' of Arabs in an apparent play for the Arab-American vote in Michigan (a state Al Gore carried anyway)."

But Mr. Bray's article does NOT say that President Bush objected to "profiling" Arabs. The Bray article says Mr. Bush was concerned with the treatment of Arab-Americans. [For one thing, only Arab-Americans vote - according to Mr. Bray, "assiduously".] For example, Mr. Bray's column says that Mr. Bush said: "Arab-Americans are profiled in what's called secret evidence. People are stopped, and we got to do something about that. My friend, Sen. Spence Abraham, is pushing a law to make sure that . . . Arab-Americans are treated with real respect."

Mr. Kaus' comments are directed at searches of people who are not United States citizens - such as all of the September 11 hijackers. I do not read Mr. Kaus as suggesting that the civil rights of Arab-Americans are any less important than the civil rights of other Americans. The crisis America is facing today comes from foreign terrorists - not from Arab-Americans.

Mr. Bush correctly argued that Arab-Americans are as entitled to protection from racial profiling as African-Americans and all Americans are. That position does not impede the Bushies' ability or obligation to point out the long-term demolition effort perpetrated by liberal Democrats on the American intelligence agencies.

The only reference to Arabs in Mr. Bray's column pertains to Al Gore, not George Bush: "Though officials deny that passengers are profiled according to ethnic group, it's widely believed the criteria used in the screening system [considered by Mr. Gore's task force] have the effect of singling out Arabs and Arab-Americans."

Posted 1:46 PM by Robert

Contra Adragna II

Mr. Adragna has returned, notwithstanding his previous assertion that he was "through debating Mr. 'Musil.'" He says he "must respond."

WELCOME BACK, MR. ADRAGNA - I NEVER BELIEVED YOU FOR A MOMENT, ANYWAY!

Mr. Adragna seems to be a little unsure exactly who he "must respond" to - since his post highlights the part of mine which paraphrases Mickey Kaus. But this is a detail! Mr. Adragna is upset with the part of both my suggestion and Mr. Kaus' suggestion that a search should be permitted where there is a belief that the subject of the search is "involved in some sort of crime" - possibly plus or minus other factors. Mr. Adragna says that the FISA standard is already lower than that:

"Actually, the standard under FISA is lower than "a belief that he's involved in some sort of crime." All you need do for "probable cause" to obtain a FISA electronic surveillance warrant is show that: (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power."

Now, this is a curious argument, since Agent Rowley clearly had a belief - a reasonable belief - that Zacarias Moussaoui was likely involved in some sort of crime. So there is no real question that if, as I suggested, the standard for searching a non-US citizen were simply a reasonable belief by the intelligence services that a non-US citizen is involved in some sort of crime, Agent Rowley would have searched Mr. Moussaoui's computer. Of course, in this context, "belief" and "reasonable suspicion" mean essentially the same thing - and if THAT is what Mr. Adragna is fulminating about, I am pleased to clarify the point. But, frankly, that DOESN'T seem to be what he is fulminating about.

Agent Rowley did not conduct her search, and her superiors in Washington did not believe she had satisfied the FISA "probable cause" standard. This was exactly because the FISA standard is not "lower" than the standards suggested by Mr. Kaus or the Man Without Qualities. Rather, the FISA standard takes a detour by requiring a demonstration that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. Mr. Kaus can speak for himself, but I have not suggested - and I do not read Mr. Kaus as suggesting - that a search should not be justified where these conditions are met. Rather, I (and, I believe, Mr. Kaus) are suggesting that an additional category of permissible searches should be created - where there is a belief (or reasonable suspicion) that the target is involved in some kind of crime - regardless of whether "(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power." But whatever else can be said, Mr. Adragna seems to be dead wrong when he says the FISA standard is strictly weaker than those proposed by Mr. Kaus or the Man Without Qualities.

Similarly, Mr. Adragna's argument about warrantless searches only holds up where the Attorney General (or other authorized high official) "certifies in writing under oath" that the "the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers and (ii) there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person." The first part of this certification was exactly the issue that stopped Agent Rowley from obtaining her warrant - and a responsible officer of the United States does not certify things under oath which are subject to ongoing, good-faith dispute.

More generally, even assuming that an electronic scan of a computer is a "physical search," how could the Attorney General (or any other official) realistically provide either of these certifications in writing under oath either in this case or in most cases? On what basis can one certify under oath that "the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers" unless the certifying official knows for a fact that the targeted property (here, Mr. Moussaoui's computer) is "under the open and exclusive control of, a foreign power or powers." Does the FBI know today for a fact that Mr. Moussaoui's didn't share his computer with someone else? Similarly, how could John Ashcroft certify under oath that there was "no substantial likelihood that the physical search [of Mr. Moussaoui's computer] will involve the premises, information, material, or property of a United States person?"

Most people take making statements under oath very seriously. Certifying under oath as to facts one does not know to be true is called "perjury." Mr. Adragna's argument bottoms on his apparent belief that John Ashcroft and every other authorized officer should share Bill Clinton's cavalier attitude towards committing perjury.

How exciting to discover in practice part of Bill Clinton's enduring legacy!

Posted 12:24 PM by Robert

The Clueless ACLU

Another example of the ACLU's clueless myopia appears in its objection to the use of "face recognition technology" at the Statue of Liberty. The ACLU says it objects because the technology (i) is easily frustrated by people wearing a hat, sunglasses or changes in lighting, and (ii) the technology has a high level of "false positives" - that is, it often misidentifies people as among those the government is looking for.

Now, the alternative to using "face recognition technology" is showing human guards pictures of the people the government is looking for. In that case, common sense, ordinary experience and extensive studies on the usefulness of "eyewitnesses" in court cases all tell us that the humans (i) are easily frustrated by people wearing a hat, sunglasses or changes in lighting, and (ii) have a high level of "false positives" - that is, often misidentify people as among those the government is looking for.

And, in addition, the guards can't reasonably be expected to remember more than a few faces at a time.

So what the heck is the ACLU talking about?

Posted 10:40 AM by Robert

Containing the Decay

Max Power notes that the Supreme Court has agreed to review the Ninth Circuit case US v Recio. I agree that a 9-0 reversal of the disgraceful Ninth Circuit opinion is to be expected. The Ninth Circuit held that where a co-conspirator joins an ongoing criminal conspiracy which has been legitimately disrupted by law enforcement officials, the co-conspirator may escape conviction for conspiracy by arguing that it was impossible for him to "join" the conspiracy because it had ceased to exist. This particular piece of legal doggerel has been around - and been judicially rejected - for a long time. The issue is a perennial favorite of law professors for their criminal law class exams. Put another way: The Ninth Circuit knew a lot better than to perpetrate the decision it did.

But Recio does not stand by itself - it is only the most recent in a decades-long litany of disruptive, willful and incompetent decisions by the Ninth Circuit. Indeed, with some exceptional luminaries - such as Judge Alex Kozinski - the Ninth Circuit has for many years been a huge embarrassment to the Federal Court system. In a given year the Supreme Court may review about 25 Ninth Circuit decisions - typically reversing more than 20 of them. Where the Ninth Circuit and another Federal Circuit disagree on a given issue, the Ninth Circuit view is rarely found to be the correct one by the Supreme Court. The problem goes way beyond mere incompetence in the Ninth Circuit.

What can be done? Obviously, the most important thing is the rapid appointment of competent judges committed to following Supreme Court precedent and Congressional statutory language. The Senate - and especially Senators Boxer and Feinstein - bear a huge responsibility for this mess by bottling up judicial appointments on partisan grounds.

But until the problem is fixed, I believe the Supreme Court should promulgate a rule absolutely prohibiting the use of Ninth Circuit precedent outside the Ninth Circuit, unless the Supreme Court has specifically released the particular Ninth Circuit case to be used as circuit court precedent. That is, the Supreme Court should prohibit lawyers from citing to un-released Ninth Circuit precedent in any document filed with the Supreme Court or in any federal court outside the Ninth Circuit. Once the Supreme Court has released a particular Ninth Circuit case, it could be cited to the extent any case from any other circuit court is cited - but release would not confer any additional Supreme Court imprimatur on the released case.

The federal courts already employ a two-tiered system of "published" and "unpublished" opinions. Unpublished opinions of the Circuit Courts may not be cited as precedent - but are genuine, binding decisions in their particular cases. This two-tiered system recognizes that the quality of unpublished opinions as precedent is just not up to the standards of what federal courts expect to see in cited precedent. The above suggestion would essentially "de-publish" all Ninth Circuit opinions outside the Ninth Circuit - which would similarly recognize that Ninth circuit opinions are generally just not up to the standards of what federal courts expect to see in cited precedent.

The Supreme Court could adopt procedures for releasing opinions that filter for quality. For example, an opinion written by Judge Kozinski would be released as a matter of routine, while an opinion by Judge Reinhardt would be presumptively unreleasable until reviewed closely by a Supreme Court clerk, who would make a recommendation to a designated Supreme Court Justice for decision as to its release.

This system might help contain the Ninth Circuit decay.

Posted 11:01 PM by Robert

Don't Fire Until You See The Whites of Their Eyes!

Lots of people in the United States have British - specifically, English - heritage. But somehow it has never been seen as necessary to "tone down" the American Revolution to avoid alienating them, and the English themselves don't seem particularly alienated from the United States or vice versa.

So why would anyone think it is necessary or advisable to "tone down" the Alamo to avoid offending Hispanics? Does somebody think Hispanics are hypersensitive types? I've never had that impression.

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.

Posted 9:01 AM by Robert

Improbable Cause

Mr. Adragna's objections to the KausFiles points are in, and they are particularly strange.

Specifically, Mr. Adragna writes:

“Kaus also takes a potshot at Sen. Leahy, but fails to note Leahy's support for the Counterintelligence Reform Act of 2000, which was supposed to fix the problems that arose in the Wen Ho Lee case.”

Mickey Kaus is more than able to defend the positions he stakes out – and he does a terrific job this time, too. Read the whole KausFiles reply. He also cites to an Ann Coulter column that is well worth reading.

Senator Leahy specifically stated that Counterintelligence Reform Act of 2000 wouldn't fix those problems that arose in the Wen Ho Lee case at all, while playing the same "the-problem-is-the-people-not-the-statute" game that Mr. Adragna pivots on:

“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.”

There's more. Lots more.

But from the larger perspective, surely one of the most amazing things here has to be the persistence of liberal apologists such as Mr. Adragna - who appears to live in a parallel universe in which liberal Democrats have been supporting strong intelligence services for the past three decades.

Posted 10:28 AM by Robert

Mickey Weighs In, and This Time He’s Naming Names and Taking Off The Gloves!

UPDATE: Mr. Adranga says that he's "through debating Mr. 'Musil'..." This before Mickey Kaus had even had his say and while the Man Without Qualities was very clear that urgent Cub Scout matters had taken precedence over all but the most preliminary response to Mr. Adragna's prior post!

But I won't be taking Mr. Adranga's pre-emptive refusal to respond into account, since the issues are significant and it's not as if my reply will be changing my standards, or be inconsistent with what I've posted previously on the same subject or be what the Federal Rules of Evidence call "cumulative" in nature - or extend an inappropriate prior post. But, in any event, now Mr. Adranga has Mr. Kaus to play with - so he can take his ball and go over to Mickey's yard.

Mickey Kaus weighs in on the question of September 11 intelligence failure culpability, and he’s nobody’s sweetheart:

“Instead of trying to silence Democratic critics as per se unpatriotic, why don't the Bushies forcefully point out how misguided leftish ideology -- supported over the years mainly by Democrats and the media --contributed greatly to the 9/11 failure. Exhibit A: The FBI appears to have been actually deterred by the prospect that it would have been accused of ethnic profiling if it had searched all U.S. flight schools for Arab terrorists. In particular, it seems to have been stung by Wen Ho Lee's highly-publicized charges that he was singled out for prosecution because of his ethnicity. Exhibit B: Dukakis-like civil-libertarian concern with the privacy rights of non-citizens produced a statute with what now seems an excessively high standard of "probable cause" the FBI had to meet before it could obtain the Moussaoui search warrant. Why do I suspect that some of the alien-defending, privacy-protecting statements of .. oh, let's say Senator Leahy on this subject might prove embarrassing if publicized today? Again, the FBI can be faulted in large part for actually (and unexpectedly) internalizing the ACLU's values.”

And just what is that makes Mr. Kaus suspect that the "alien-defending, privacy-protecting statements" of Senator Leahy might prove embarrassing? Just what might have stimulated that Kaussian thought? Could it be anything that's appeared in this little parsec of the Galaxy?

To propose an answer to Mr. Kaus' question: It has long been the belief of the Man Without Qualities that the Bushies have not attacked the record of both the Congressional Democrats and prior Democratic Administrations because the Bushies think that the best way to defend America and fulfill the obligations of the office of the President is to avoid partisan fighting on topics of national security - especially in connection with September 11. This is a variation on one of the worst mistakes of his father's administration: thinking the Democrats would act responsibly to protect the interests of the nation. The President should really know a lot better than that. But, then, maybe he does know - and is counting on the voters to figure it out, too.

Kausfiiles makes lots of excellent new observations and also cites to the interesting ultraspin effort by Seymour Hersh and William Safire’s current column on the topic.

Read! Enjoy! Send letters of protest to Senator Leahy!

Posted 5:00 PM by Robert

One must move with the times !!


In contrast to Mr. Adragna's reasoning, an article in today's New York Times indicates that FISA did not faciliate the FBI's counterterrorism efforts that some, especially Democrats, have argued might have stopped the attack on the World Trade Center and the Pentagon. In fact, the Times says the FISA seems to have produced a quite alarming result with respect to Mr. Moussaoui - the so-called "Twentieth Hijacker":
 
"…recent interviews of intelligence officials by The New York Times suggest that the bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information. The F.B.I., the officials said, had become wary after a well-regarded supervisor was disciplined because the court complained that he had submitted improper information on applications."

....

"The bureau's reluctance to press new applications for national security search warrants stemmed, some officials believe, from an incident late in the Clinton administration."

"In the fall of 2000, the seven judges on the secret Foreign Intelligence Surveillance Court in Washington summoned Attorney General Janet Reno to their secure courtroom. The judges, in a letter signed by Chief Judge Royce C. Lamberth, had complained to her of a serious breach. Misleading affidavits had been submitted to the court, which approves warrants to eavesdrop on people suspected of being foreign agents or international terrorists. At the meeting, Ms. Reno agreed that the problem was serious, the officials said."

"All of the flawed affidavits had been submitted by Michael Resnick, the F.B.I. supervisor in charge of coordinating the surveillance operations related to Hamas, the militant Palestinian group. The judges said they would no longer accept applications from Mr. Resnick."

"In response, the F.B.I. director at the time, Louis J. Freeh, ordered a broader review of the eavesdropping applications — including those related to Al Qaeda. That review, the officials said, turned up disturbing signs that Al Qaeda applications were also flawed."

"For Mr. Resnick, who had been a rising star in the bureau, the complaint from the judges and especially their refusal to have him appear before them again was a blow to his career that angered some of his colleagues. Ms. Reno turned over the complaint to the department's Office of Professional Responsibility, which is still investigating Mr. Resnick."

"Intelligence officials said the event resulted in making the bureau far less aggressive in seeking information on terrorists. Other officials said the Resnick case prompted bureau officials to adopt a play-it-safe approach that meant submitting fewer applications and declining to submit any that could be questioned. 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 [FISA]. But the officials said it appeared that the bureau had not stirred itself to fill that gap."

The Man Without Qualities will return to this topic. But for now another note: This is the day that Cub Scouts learn to remember the men and women who have died to keep the country alive and great, especially the members of our own families. This year it is appropriate to include in that remembrance all who perished in the World Trade Center and the Pentagon attacks.

Posted 8:59 AM by Robert

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.

HAVE A GREAT MEMORIAL DAY!