AJStrata has another great post about the FISA court. This time detailing the war that has been going on between the FISA court and the Bush Administration, at one point a higher court had to get involved and they slapped the FISA court silly:
It is becoming more and more evident some FISA judges (James Robertson?)were resisting common sense changes to the intelligence and law enforcement process that would enhance our chances of thwarting future 9-11 attacks. Our reader SBD commented on our previous post this morning and provides clear evidence the FISA wars started early on, less than a year after 9-11, and as we all know have been escalating ever since.
On May 17, 2002, the FISA court was itself taken to court by the Bush administration for trying to retain the Gorelick Wall barring the sharing of intelligence data with law enforcement efforts.
The Department of Justice has moved this Court [FISA] to vacate the minimization and ?wall? procedures in all cases now or ever before the Court, including this Court?s adoption of the Attorney General?s July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion. The Court has considered the Government?s motion, the revised intelligence sharing procedures, and the supporting memorandum of law as required by the Foreign Intelligence Surveillance Act (hereafter the FISA or the Act) at 50 U.S.C. ?1805(a)(4) and ?1824(a)(4) (hereafter omitting citations to 50 U.S.C.) to determine whether the proposed minimization procedures submitted with the Government?s motion comport with the definition of minimization procodures under ?1801 (h) and ?1921(4) of the Act. The Government?s motion will be GRANTED, EXCEPT THAT THE PROCEDURES MUST BE MODIFIED IN PART.
It is a fascinating read on a FISA court trying to usurp powers given to the administration. The end result was a higher court?s decision to overrule the FISA Court.
Conclusion
FISA?s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from ?ordinary crime control.? After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.
We acknowledge, however, that the constitutional question presented by this case?whether Congress?s disapproval of the primary purpose test is consistent with the Fourth Amendment?has no definitive jurisprudential answer. The Supreme Court?s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.
Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President?s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
Accordingly, we reverse the FISA court?s orders in this case to the extent they imposed conditions on the grant of the government?s applications, vacate the FISA court?s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.
He then goes on to detail how the FISA court decided it had become “The Wall”:
In significant cases, involving major complex investigations such as the bombings of the U.S. Embassies in Africa, and the millennium investigations, whem criminal investigations of FISA targets were being conducted concurrently, and prosecution was likely, this Court became the ?wall? so that FISA information could not be disseminated to criminal prosecutors without the Court?s approval. In some cases where this Court was the ?wall,? the procedures seemed to have functioned as provided in the Court?s orders; however, in an alarming number of instances, there have been troubling results.
Who needs a Gorelick Wall when we can have the FISA Wall?
David Tell writes for The Weekly Standard about some of these problems:
Since shortly after September 11, 2001-and under the terms of a formal order signed by the president of the United States sometime early the following year-the Pentagon’s giant signals–intelligence division, the National Security Agency, has monitored “the international telephone calls and international email messages of hundreds, perhaps thousands, of people inside the United States without warrants.” So reported the New York Times more than a week ago. Official Washington is appalled.
Isn’t this sort of thing supposed to be illegal-unconstitutional, even? And why would the president think such unilateral domestic spying necessary to begin with?
[…]Besides which, if the president really was convinced that U.S. counterterrorism requirements included a program of domestic surveillance beyond what FISA authorized, how come he didn’t just ask Congress to amend that law-instead of granting himself apparent permission to violate its very essence?
[…]Their question persists: Why on earth-in the immediate aftermath of 9/11, when our need for meaningful signals intelligence was presumably at its zenith-would the president not have turned first, for assistance, to the Foreign Intelligence Surveillance Court?
Because that would have been insane, that’s why.
Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it’s been revealed in any number of authoritative, after–the–disaster investigations. According to the December 2002 report of the House and Senate intelligence committees’ Joint Inquiry into the Terrorist Attacks of September 11, 2001, for one, the FISA system as a whole-and the FISA court in particular-went seriously off the rails sometime around 1995. A false impression began mysteriously to take hold throughout the government that the FISA statute, in combination with the Fourth Amendment, erected an almost impermeable barrier between intelligence agents and law enforcement personnel where electronic eavesdropping was concerned. And by the time, a few years later, that Osama bin Laden had finally become an official counterterrorism priority, this FISA court–enforced “wall” had already crippled the government’s al Qaeda monitoring efforts.
Absent specific, prior authorization from the FISA court, federal al Qaeda investigators were formally prohibited from sharing surveillance–derived intelligence information about terrorism suspects and plots with their law enforcement counterparts. And in late 2000, after federal prosecutors discovered a series of legally inconsequential errors and omissions in certain al Qaeda–related surveillance applications the FISA court had previously approved, the court’s infamously prickly presiding judge, Royce Lamberth, appears to have had a temper tantrum ferocious enough to all but shut down the Justice Department’s terrorism wiretapping program. “The consequences of the FISA Court’s approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive,” the Joint Inquiry explained. “Many FISA surveillances of suspected al Qaeda agents expired because [Justice officials] were not willing to apply for application renewals when they were not completely confident of their accuracy.” And new applications were not forthcoming, the result being that, at least by the reckoning of one FBI manager who testified before the intelligence committees, “no FISA orders targeted against al Qaeda existed in 2001” at all. Not one.
Non–Justice intelligence agencies quailed before Judge Lamberth, too, it should be noted. The National Security Agency, for example, “began to indicate on all reports of terrorism–related information that the content could not be shared with law enforcement personnel without FISA Court approval.” It used to be, not so long ago, that NSA’s pre–9/11 timidity about such eavesdropping was universally considered a terrible mistake. The agency’s “cautious approach to any collection of intelligence relating to activities in the United States,” the Joint Inquiry concluded, helped blind it to the nature of al Qaeda’s threat. NSA “adopted a policy that avoided intercepting communications between individuals in the United States and foreign countries.” What’s more, NSA adopted this unfortunate policy “even though the collection of such communications is within its mission,” even though “a significant portion of the communications collected by NSA” has always involved “U.S. persons or contain[ed] information about U.S. persons,” and even though “the NSA and the FBI have the authority, in certain circumstances, to intercept . . . communications that have one communicant in the United States and one in a foreign country.”
“One such collection capability” mentioned in a heavily redacted section of the Joint Inquiry report sounds like it might be especially relevant to the current controversy over President Bush’s Gestapo–like tendencies. It seems there’s long been something called “the FISA Court technique,” a category of electronic surveillance distinguishable from ordinary, FISA–regulated eavesdropping by its higher probability of capturing “communications between individuals in the United States and foreign countries”-but meeting the “approval of the FISA Court” just the same. Alas, “NSA did not use the FISA Court technique” against our nation’s enemies in the old days, “precisely because” of its allergy to domestic surveillance. And “thus, a gap developed between the level of coverage of communications between the United States and foreign countries that was technically and legally available to the Intelligence Community and the actual use of that surveillance capability.”
Sounds like it would have been a really, really good idea for NSA to have gone ahead and done this stuff back before 9/11. So why is it such an atrocity that President Bush has them doing it now?
This article say’s it better then a dozen of my posts have.
It just pisses me off to no end that at one point the left was upset because our intelligence agencies didn’t put two and two together due to a self imposed wall, but now they want an even larger wall. It’s almost as if they believe there really is no war against terror….it’s all made up.
In the end this supposed scandal is shaping up to be just another spitball thrown by the left in an attempt to make something stick. This one didn’t work.
Previous:
The Liberal Cabal Against Bush
The Leftwing Bubble
Powerline’s Analysis Of The NSA Wiretaps
Is Judge Robertson The Leak
Who Is The NSA Wiretap Leaker
Plotting The Demise Of America
Democrats, Too Busy Defending Terrorists From America
We Are At War People
The NYT Exposed
Other’s Blogging:
Hugh Hewitt
Big Lizards
California Conservative
Tigerhawk
Macsmind
Say Anything
In the end this supposed scandal is shaping up to be just another spitball thrown by the left in an attempt to make something stick. This one didn’t work.

See author page
This makes perfect sense since it’s typical liberal ‘thinking’.
“Protect us from terrorists but don’t do anything that violates their rights” comes from the same page in their handbook as “We need energy independence from the Saudis but you can’t increase domestic energy production.” Kerry used it last year to say “I actually did vote for it before I voted against it.” Same ‘logic’.