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FISA Court Wants Answers

Who would know better what is required of the Government when it comes to electornic surveillance of foreign intelligence targets than the FISA Court judges? Why would we take Bush's word or that of his middle level legal advisors over their's?

The Washington Post reports FISA judges want answers. They are scheduled to be briefed on Bush's warrantless NSA electronic surveillance program on Monday:

Several judges on the Foreign Intelligence Surveillance Court said they want to hear directly from administration officials why President Bush believed he had the authority to order, without the court's permission, wiretapping of some phone calls and e-mails after the Sept. 11, 2001, attacks. Of serious concern to several judges is whether any information gleaned from intercepts by the National Security Agency was later used to gain their permission for wiretaps without the source being disclosed.

Can you say Fruit of the Poisonous Tree?

...[FISA Judge] Kollar-Kotelly had privately raised concerns in 2004 about the risk that the government could taint the integrity of the court's work by using information it gained via wiretapping to obtain warrants from judges under the Foreign Intelligence Surveillance Act.

Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense.

Members of Congress are also perturbed:

Yesterday, Rep. Jane Harman (Calif.), the ranking Democrat on the House intelligence committee, sent a letter to Bush charging that the limited nature of congressional briefings on the monitoring program violated the National Security Act. The White House informed the chairmen of the House and Senate intelligence oversight committees and the two ranking Democrats about the program.

The National Security Act requires the president to keep all members of the two committees fully informed of intelligence activities with the exception of those conducted covertly overseas. "In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act," Harman wrote.

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    Re: FISA Court Wants Answers (none / 0) (#1)
    by Dadler on Wed Jan 04, 2006 at 11:27:22 PM EST
    Well, if so, here we go... Will the legally mandated court be convinced of its own irrelevance? That would seem to be the question. Putting aside the trouble, to put it lightly, that I have with secret courts to start with, that the answer could be in doubt is what worries me the most. One just doesn't know these days. Are we a nation of laws, even weak ones in this case? Or is jumping a bar set so low you couldn't slide a dime under it just too much to ask our leaders? Poor little subjects of the kingdom that we are. Shop away, my minions. Shop away the fear and doubt.

    Re: FISA Court Wants Answers (none / 0) (#2)
    by jimakaPPJ on Thu Jan 05, 2006 at 06:22:09 AM EST
    This story is just a rehash of the 12/16 NYT story.
    A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests
    I would also hope the good judge considers this. The article was written sometime prior to 12/16. That was the VERY FIRST public announcement, yet from it we have:
    According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters.
    So I would hope the judge reviews who the "judge presiding" was, and why that judge discussed this secret information with reporters and/or other persons. I would also hope the Senate investigates who Senator Rockfeller discussed this secret information. So yes, let us play 20 questuons. But let us be sure they all get asked.

    Re: FISA Court Wants Answers (none / 0) (#3)
    by Punchy on Thu Jan 05, 2006 at 07:01:46 AM EST
    2 comments: 1) Does anyone else see a "Andrew Jackson" moment here? The old (I'm paraphrasing) "they can rule it, let them try and enforce it" move? Honestly, what could the court say that would change Bush's actions? He not only feels he can break the law here, he also claims he can do it with regard to the McCain torture bill. So what does some admonishment from some judges matter to Bush? 2) Should he ever need this court again (doubtful), WOW are they going to scrutinize every request. So much for the rubber stamp. Bush better hope he can ignore these judges, b/c FISA warrants just got a LOT harder to get.

    Re: FISA Court Wants Answers (none / 0) (#4)
    by legion on Thu Jan 05, 2006 at 07:30:15 AM EST
    Have you people not been paying attention? The 'poisoned fruit' issue only matters if the administration ever intends to bring the people they're investigating into a criminal court. If the suspects are only ever put in front of a military tribunal, which has very different rules on accepting evidence, then the opinions of neither the FISA court nor SCOTUS matter. Bush has already declared the judicial branch irrelevant. We already live in a fascist police state. It's just not been made official yet.

    Re: FISA Court Wants Answers (none / 0) (#5)
    by Repack Rider on Thu Jan 05, 2006 at 07:34:36 AM EST
    I would also hope the Senate investigates who Senator Rockfeller discussed this secret information. I guess you didn't follow that Senator Rockefeller, who was sworn to secrecy under the law, put his original misgivings into a hand-written letter in the Intelligence Committee safe so that he could be on record opposing the actions if and when they wre revealed. He didn't reveal them to a soul, but a patriotic American who saw that the Constitution was being violated in secret blew the whistle on the administration, and once it was public information, Senator Rockefeller showed that even though he was prevented by law from discussing his misgivings even with other congresspeople, he had put them on record. What part of the Fourth Amendment is the hardest for you to understand? Why should anyone be punished for revealing that the president broke the law of the land?

    Re: FISA Court Wants Answers (none / 0) (#6)
    by Dadler on Thu Jan 05, 2006 at 07:55:32 AM EST
    Jim, This will be the end of Bush. Just my hunch. You can dress this up six ways from Sunday, but the administration IS going to need to convince this court of it's own irrelevance. So...unless they lie to the court (which they've in fact done, de facto, by going around them illegally), then the court will indeed have to find itself irrelevant for Bush to get away here. Or they will conclude he broke the law in a serious manner. And I don't care what anyone tries to rationalize here, the ONLY reason you don't go back to that court to get a warrant RETROACTIVELY is because you're doing something you're not supposed to be doing. You'll say "well, he must've been after some pretty important people." My hunch is just the opposite, that he went after people who've got nothing to do with it, like peace group bake sales, or anti-war groups, or certain individuals they simply don't like. Otherwise, ther is NO reason to not go back to the court and obtain your warrant. Oh, and I do think the administration will now have trouble being seen as credible BY THIS COURT, so thinking the court is going out of their way to go after Rockefeller or the presiding judge, I don't know, just seems like desperate housewives time. Bush and his boys threw the sh*t into the fan, it's their job to take the blowback.

    Re: FISA Court Wants Answers (none / 0) (#7)
    by Edger on Thu Jan 05, 2006 at 08:49:14 AM EST
    Well, it looks like we may get some answers soon. I'm not too keen on the source of this article, but The Washington Times this morning is reporting that:
    A former National Security Agency official wants to tell Congress about electronic intelligence programs that he asserts were carried out illegally by the NSA and the Defense Intelligence Agency. Russ Tice, a whistleblower who was dismissed from the NSA last year, stated in letters to the House and Senate intelligence committees that he is prepared to testify about highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the DIA. "I intend to report to Congress probable unlawful and unconstitutional acts conducted while I was an intelligence officer with the National Security Agency and with the Defense Intelligence Agency,"


    Re: FISA Court Wants Answers (none / 0) (#8)
    by Talkleft Visitor on Thu Jan 05, 2006 at 09:21:47 AM EST
    Gah! What a corny picture. It also raised the quintessential question, which is important in both issues of sanity and issues of botany. Are nuts fruits? Those look like buckeyes and gum tree nuts to me.

    Re: FISA Court Wants Answers (none / 0) (#9)
    by Talkleft Visitor on Thu Jan 05, 2006 at 10:09:45 AM EST
    When is the last time anyone has ever heard of Judges going out looking for criminals to prosecute. Did the judges seek out the incriminating evidence that cooked Nixon, if they had don't you think that that would have put slight shadow of doubt over them during the prosecution. In my opinion, when a judge begins making public comments about accusations that have been made by the NYT, that judge has declared himself partial and should be disciplined, recused, and/or removed from the bench.

    Re: FISA Court Wants Answers (none / 0) (#10)
    by jimakaPPJ on Thu Jan 05, 2006 at 11:10:52 AM EST
    Repack - Follow this. 1. The first public story was on 12/16 in the NYTimes from which the quote came regarding Senator Rockefeller and the judge. Now. How did they get a comment from the Senator and the judge? It's easy. Either the Senator and the judge talked to the NYTimes before 12/16. Or, the NYTimes lied about them and made up false comments. Which do you think happened? Dadler - This court has absolutely no way of doing anything except issuing some injuction, which will be overturned immediately. The only branch of government that can do anything would be congress, and they will not act. Great theater, nothing more. BTW - Who do you think was the judge who was talking to the NYT, as quoted in the 12/16 article? And please remember that was the FIRST public information. Do you think maybe he broke the law? Hmmmm? Just a little bit??? Secret information and all that...

    Re: FISA Court Wants Answers (none / 0) (#11)
    by jimakaPPJ on Thu Jan 05, 2006 at 11:13:40 AM EST
    Dadler - Sorry, missed your last point. My thoughts about this court going after Rockefeller and the unknown judge was rhetorical. The Justice Department will be the one.

    Re: FISA Court Wants Answers (none / 0) (#12)
    by glanton on Thu Jan 05, 2006 at 11:25:06 AM EST
    It is of course in the extreme public interest that we citizens know we are being spyed upon by the government. Thank goodness for whomever hadthe courage to come out and state it. (Though anyone who was surprised by the information may have been awful close to a vegetative state....) But then, polls keep showing that most Americans don't care about the spying. "Go ahead," they belch to a friend on the way out of a Red Lobster after shopping at Wal Mart, "spy on me. I'm having appropriate conversations."

    Re: FISA Court Wants Answers (none / 0) (#13)
    by Dadler on Thu Jan 05, 2006 at 11:31:55 AM EST
    Jim, The difference between someone who is a whistle-blower and merely a "leaker" would seem, to me, to be quite clear here. If to you it is in the opposite way, so be it. I'll ask again, why not go back to the court RETROACTIVELY unless you are hiding something that is too illegal and/or embarrassing to fess up to? I know, you think the info must've been SOOOOO sensitive, SOOOOOOO important to national security, that not even the law applied to it. Fine. That's your right. As usual, we're on opposite sides of the universe on another one. Peace.

    Re: FISA Court Wants Answers (none / 0) (#14)
    by Quaker in a Basement on Thu Jan 05, 2006 at 12:26:33 PM EST
    The 'poisoned fruit' issue only matters if the administration ever intends to bring the people they're investigating into a criminal court.
    You mean like Jose Padilla?

    Re: FISA Court Wants Answers (none / 0) (#15)
    by Edger on Thu Jan 05, 2006 at 12:34:57 PM EST
    Stephen Gordon and his commenters at Hammer Of Truth ask some rather uncomfortably pointed questions on his blog today, that some here may want to think about:
    If Bush is above the law, what is the reason for having law in the first place? Is there any point to be made about how the law actually reads if it is disregarded anyway? This thought process can be applied to congress and the Constitution. Is there any point in having a “supreme law of the land” if congress disregards it?
    Why not just make Bush Supreme Leader for Life and be done with it. That way there'll be no arguments over whether he breaks the law or violates the Constitution. Sure save a lot of time and trouble, right? He'll be the law. Done. Problem solved. Hmmm... Course, that might start up another "insurgency" a little too close for comfort...

    Re: FISA Court Wants Answers (none / 0) (#16)
    by kdog on Thu Jan 05, 2006 at 12:59:39 PM EST
    Hmmm... Course, that might start up another "insurgency" a little too close for comfort...
    I would certainly hope so edger! Sign me up.

    Re: FISA Court Wants Answers (none / 0) (#17)
    by jimakaPPJ on Thu Jan 05, 2006 at 05:46:18 PM EST
    Dadler - This is not a difference of opinion. It is the difference between what we know, and what is claimed, with no evidence. What we know is that the administration has wire tapped calls from known terrorists outside the country to people inside the country. We don't even know if these are US Persons (and try to remember the definition) or merely people in the country on Visas, perhaps illegally obtained or just flat out illegal. Everything else is absolute speculation. Please. Show me otherwise. And why not "go back." The issue is two fold. First, Bush does not think that he is required to do so under the constitution. I think he is correct. Secondly, I think he understands that if he gives up that Presidential authority, he will never get it back. Rule by un-elected judges will be complete. Tell me this. Why are you willing to turn over such power to an un-elected judge for life instead of a President, no matter what he desires, can serve only eight years? That is neither logical or smart. Glanton - Don't look now, but your elitism is showing. Edger - I note that your questions are answered in my comments to Dadler.

    Re: FISA Court Wants Answers (none / 0) (#18)
    by glanton on Thu Jan 05, 2006 at 06:04:09 PM EST
    In Jim's world, all who are not "Jacksonians" (redneck lemmings) are "elitists." Exception: The real elitists, though: the corporate interests served so bootlickingly by this Administration and this Congress, those are Jim's friends.

    Re: FISA Court Wants Answers (none / 0) (#19)
    by Edger on Thu Jan 05, 2006 at 11:43:04 PM EST
    We don't even know if these are US Persons (and try to remember the definition) or merely people in the country on Visas... Everything else is absolute speculation. Please. Show me otherwise.
    President Bush signed an executive order – and extended it on several occasions – to allow the NSA to monitor the international telephone calls and e-mail messages of American citizens. Under the order, the NSA was given blanket authority to conduct surveillance without review or approval by any court. It has been reported that the targets are not only suspected terrorists, but also peace activists and others who oppose the administration’s policy on Iraq .

    Re: FISA Court Wants Answers (none / 0) (#22)
    by chupetin on Fri Jan 06, 2006 at 01:58:24 AM EST
    Anybody recall the reason for the FISA court being created?
    First, Bush does not think that he is required to do so under the constitution. I think he is correct.
    Spoken like a true Libertarian?

    Re: FISA Court Wants Answers (none / 0) (#23)
    by Dadler on Fri Jan 06, 2006 at 09:22:04 AM EST
    Jim, You lost me. The ONLY reason you don't go back to the court is because you've done something you don't want to get caught on. (And if any of us had anything to "show", we wouldn't be having this debate; that's the problem with secrecy, it's antithetical to democracy). Your belief about Bush blowing off the court because he was worried about losing presidential power makes NO sense, since in doing this he has LOST more power and credibility. Just plain stupid. And contemptuous of the American citizenry, which he so egomaniaclly believes he can "protect". His job is to be an executive, not a superhero. One man in his position "protects" no one. We have a government for that, made up supposedly of all free Americans. There are intelligence and surveillance laws here, created for a reason (called democracy and constitutional protection), they are weak and require almost nothing to follow, and are carried out by a largely compliant court. And Bush STILL couldn't do this? Because he didn't want to lose power??? That's just a very weak rationalization. That court is the SOURCE of his power, by ignoring it he has lost that power and tainted who knows how many cases. He went around the court to keep something secret, that is the logic ANY investigator would see here first. And with Bush's record of dismal failures, lying about EVERYTHING, that same logic tells me he's hiding the kind of spying on Americans that EVERYONE would find ridiculous. Like spying on peace group bake sales and the like, which this administration has done plenty of. And that, in short, is simply staggering in its idiocy. Have a good one. I'm done with this. What is the point of the FISA court? To simply be there when it's convenient? You should be calling for its abolition. Why should any president be bothered with secret courts when carrying out secret spying? Why don't we just allow the president his own secret police? Oh wait, the real worry here is Rockefeller. Must be that liberal media that has given Bush a pass on almost everything (because they let themselves be bullied). Your confidence that this is all nothing is staggering. On the heels of the Abramoff scandal, the corruption and deceit of the ruling party and their president is on full display.

    Re: FISA Court Wants Answers (none / 0) (#24)
    by jimakaPPJ on Fri Jan 06, 2006 at 09:54:40 AM EST
    edger - Read FISA. It defines US Persons. Educate yourself. BTW - Why the "quote" but no link? glanton - I was being kind. Actually your statement is racist. Dadler - Presidents protect the power of their office every bit as much as do the other two branches. You have no problem when judges do, which tells us that you favor rule by court.

    Re: FISA Court Wants Answers (none / 0) (#26)
    by Talkleft Visitor on Fri Jan 06, 2006 at 11:31:11 AM EST
    This is a more highly evolved version of Nixon's doctrine as he stated in the Frost interview here:
    FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

    NIXON: Well, when the president does it that means that it is not Illegal.

    FROST: By definition.

    NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

    and I'm sure that somewhere in the fiery bowels of Hell Tricky Dick is kicking himself about not getting his lackeys in the DOJ to put it in writing so that could have a 'legal opinion' backing up his belief. A good discussion of the issue can be found here:
    KEITH OLBERMANN: Mr. Bush's defenders on this have said, in fact, he himself has quoted Article 2 of the U.S. Constitution. It says, he says, that it gives him the authority, requires him to protect this country in any way necessary. Is that absolute? JOHN DEAN, FORMER WHITE HOUSE COUNSEL: Well, I've never read Article 2 quite as broadly as it's being read now, and I've often thought what would have happened if Richard Nixon had said, Well, you know, what this is really about is my commander-in-chief power. That's why I'm breaking into Daniel Ellsberg's office, to see if he's passing out these Pentagon papers to the communists. That's the parallel argument. It was probably the best defense that Nixon might have made, but he actually didn't even go that far. OLBERMANN: I can remember well, though, that President Nixon's rationalization, and this was in the David Frost interviews three years after the resignation, on all of this was, if the president does it, then it is not illegal. Is there a legal or constitutional support for that idea? Is there something in how Lincoln suspended habeas corpus and ignored the Supreme Court during the Civil War that gives the president the right to define an emergency and declare what's necessary to deal with that emergency, all by himself? DEAN: There's no question a president has what they call prerogative powers, and that's what Nixon was talking about with Frost. In fact, they were talking specifically about Lincoln in that exchange. And it's a long-held belief that, indeed, it comes-goes all the way back to John Locke's thinking on executive powers, that there are inherent powers that nobody will put into a Constitution, that in case of an emergency, the president can exercise those prerogative powers. What's interesting, Keith, is, every time a president does exercise his prerogative powers, he tends to get himself in trouble, whether it be JFK with the Bay of Pigs, whether it be Eisenhower with U-2 flights, whether it be Richard Nixon or Lyndon Johnson escalating Vietnam without congressional clearance, and Nixon's actions himself. They all seem to get in trouble when they go into this area. And we see it again today.
    Link Now, PPJ will tell us that 'former' means worthless as a source of fact or opinion for anyone except Naval Aviation vets or retired mid-level executives, of course. In other words, when he doesn't like the message, he gets picky about the messenger. TTFN, Whizzy.

    Re: FISA Court Wants Answers (none / 0) (#27)
    by jimakaPPJ on Fri Jan 06, 2006 at 11:41:21 AM EST
    DA - My you do rattle on so.

    Re: FISA Court Wants Answers (none / 0) (#28)
    by jimakaPPJ on Fri Jan 06, 2006 at 11:47:22 AM EST
    From the post:
    Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense
    . et al - If this is a real court, isn't the judges commenting on a matter before them extremely improper? "I'm just the judge, but I think Jose Padilla is guilty." Anybody want to guess what story would be at the top of every newscasts in the world? I think it is time we talk about impeacment. Impeachment of these judges.

    Re: FISA Court Wants Answers (none / 0) (#29)
    by Talkleft Visitor on Fri Jan 06, 2006 at 11:59:15 AM EST
    DA - My you do rattle on so. Don't Tread on Me

    Re: FISA Court Wants Answers (none / 0) (#30)
    by Talkleft Visitor on Fri Jan 06, 2006 at 12:19:34 PM EST
    Sounds to me like the judges have some questions that they want answered by the Bush Administration, PPJ. Do you think that impeachment is really warrented for their inquiry? You're not confusing the remarks by Rep. Jane Harman, with those of the judges, are you PPJ? If the judges did make the statements that Rep. Harman made, you would have a valid point, but unless you've read or heard something different that wasn't in the WP article, your comment is an excellent example of a non-sequitur. BTW, Rep. Harman is protected from impeachment for her remarks by Congressional immunity, so if you were going to go down that path I'll be nice and save you the effort TTFN, Baldrick.

    Re: FISA Court Wants Answers (none / 0) (#31)
    by glanton on Fri Jan 06, 2006 at 12:25:10 PM EST
    Jim writes:
    I was being kind. Actually your statement is racist.
    I almost fell out of my chair laughing when I read that. Jabberwocky, anyone? Here's a great example of what I'm talking about, Jim. For your reading pleasure, I give you the "Dayside" Audience, December 19th. My favorite from the link:
    Audience member: We’ve got to give the President the flexibility to protect me. I use my cell phone all the time and I don’t have any problem with the folks listening to the conversations I have because they’re appropriate conversations. And the audience bursts into applause.
    Now the question is, Jim: what right-thinking person, presented with such a spectacle of mob mentality, wouldn't look down on those involved? Stay alert, and stay with Fox.

    Re: FISA Court Wants Answers (none / 0) (#32)
    by Talkleft Visitor on Fri Jan 06, 2006 at 12:35:22 PM EST
    To follow-up: 1 The defendants referred to wouldn't be tried under the FISA court, so the judges wouldn't have a conflict of interest there. 2 The judges were just stating the fact that if lies were told to obtain warrants for wiretaps, then the evidence would be tainted and any defendents whose attorney could prove in court that this was the case would have grounds to have the evidence thrown out and the charges dismissed against their client(s). 3 This is such a basic legal principle that its enunciation by anyone, let along a judge, could in no way taint the outcome of any trial involving said defendants. Google 'conditional statements' and get back to us, Baldrick.

    Re: FISA Court Wants Answers (none / 0) (#33)
    by jimakaPPJ on Fri Jan 06, 2006 at 08:17:03 PM EST
    Glanton - Let's see... You attacked a class of people based only on their appearance, where they shop and where they eat. You figure it out. DA - My, my. You do rattle on. Now we have you defending judges making improper comments. Desperation, eh? BTW - The questions they are commenting on have to do with the information they have asked for to allow them to make a decision. You be reaching, Dark Avenger.

    Re: FISA Court Wants Answers (none / 0) (#34)
    by Talkleft Visitor on Fri Jan 06, 2006 at 10:16:37 PM EST
    DA - My, my. You do rattle on. Now we have you defending judges making improper comments. PPJ, let's look at what you quoted and characterized as "improper comments" Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. The questions they are commenting on have to do with the information they have asked for to allow them to make a decision. Yes, they want to know if the warrants they signed were tainted. You still haven't explained your logic how wanting this information is improper.
    Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained.
    So they made a conditional statement that if the answers run a certain way, they could demand some proof etc. Not that they would, but that they could. So, again, how can you characterize the judges remarks as improper, as they have stated that they want facts, and that they have options they can implement if the facts run a certain way?
    Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense
    You are aware that the defense is entitled to have all the facts and evidence that the prosecution has in their possesion in our criminal justice system, aren't you? So, to make no mistake about this, you want the judges impeached for wanting to know the truth about the background information behind the warrants they approved of, and for stating something that any competent criminal attorney, defense or prosecution, would know in the first place. Wow!~ You are terribly confused these days, PPJ so keep up the good work, Baldrick