WaPo: Chief FISA judge warned about misuse of NSA spy data

[quaoar]

Edit to add link

http://www.washingtonpost.com/wp-dyn/content/article/20...

By Carol D. Leonnig
The Washington Post

WASHINGTON — Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, U.S. District Judge Royce Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush’s program. The president’s secret order, issued sometime after the Sept. 11, 2001, attacks, allows the National Security Agency to monitor telephone calls and e-mails between people in the United States and contacts overseas.

James Baker, the counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review, discovered in 2004 that the government’s failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.

[hang a left]

1. I wonder if this was when the visit to Asscroft's bedside took place

snip>
James Baker, the counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review, discovered in 2004 that the government’s failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.

snip>

And while we are on this paragraph that is not the infamous James Baker ala partner in crime with Poppy is it?

[goforit]

54. This is not the same James baker?

[0007]

58. James A. Baker III is the one and only James A. Baker III

[hang a left]

2. link?

[Rose Siding]

3. "infuriated". I like that. Now, hold the appropriate parties in contempt!

[Wordie]

4. I'd like to know more about that temporary suspension

of the NSA spying program. If it was suspended temporarily because of concerns about it, on what basis was it brought back online? Was it changed in some way and then reinstated? There's just so much we don't know.

Edit: recommended.

[quaoar]

6. The story

has not yet been posted to the site. I'll add a link when they do.

[PhilipShore]

7. WP: Secret Court's Judges Were Warned About NSA Spy Data

Washington Post
Secret Court's Judges Were Warned About NSA Spy Data
By Carol D. Leonnig

Thursday, February 9, 2006; Page A01

Secret Court's Judges Were Warned About NSA Spy Data
Program May Have Led Improperly to Warrants

http://www.washingtonpost.com/wp-dyn/content/article/20...

[quaoar]

8. Thanks

But I'll be damned if I can find it on the site. Not on the front page.

[Wordie]

10. Ashcroft apparently thought probable cause was inconvenient...

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said. (emphasis mine)

Sheesh. Constitutional restrictions on this illegal behavior mean nothing to these fools.

Edited to remove concerns about missing link in OP, now corrected.

[quaoar]

11. Already did

But thanks.

[dweller]

5. k&r

and bookmarked. I'd like to see some links too. I doubt the secret order happened after Sept 11.

are there dates of the temp. suspension and then reactivation?

dp

[stop the bleeding]

9. They are done check out these key snips

Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

~snip~

Several FISA judges said they also remain puzzled by Bush's assertion that the court was not "agile" or "nimble" enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court's actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.

On Sept. 12, Bush asked new FBI Director Robert S. Mueller III in a Cabinet meeting whether it was safe for commercial air traffic to resume, according to senior government officials. Mueller had to acknowledge he could not give a reliable assessment.

Mueller and Justice officials went to Lamberth, who agreed that day to expedited procedures to issue FISA warrants for eavesdropping, a government official said.

The requirement for detailed paperwork was greatly eased, allowing the NSA to begin eavesdropping the next day on anyone suspected of a link to al Qaeda, every person who had ever been a member or supporter of militant Islamic groups, and everyone ever linked to a terrorist watch list in the United States or abroad, the official said.

Combine this happenstance with this: Bush faces Congressional Revolt over Spying

[stop the bleeding]

17. Check this out - BASED ON WHAT IS SAID THE wh IS DONE- check it out

From the WAPO article

Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions.


Now cut to the linked article

Bush faces Congressional Revolt over Spying

Once again key phrase

Arlen Specter, Republican chairman of the Senate judiciary committee, said on Wednesday he was drafting legislation that would require the administration to seek a ruling from a special US intelligence court on whether the spying program was legal.

I'm no lawyer but when you put these two together it spells For the WH, maybe I am reading this wrong maybe not:

[wtmusic]

19. I read it in the opposite light

Arlen's court is merely to find out whether the program was legal, so that FISA could be changed.

They're trying to pull an end run on this. We need to fight it with all we've got.

[stop the bleeding]

20. Key phrase by FISA judges

if ever made public and challenged in court(they don't specify what court just court in general), ran a significant risk of being declared unconstitutional,


and from Arlen

Arlen Specter, Republican chairman of the Senate judiciary committee, said on Wednesday he was drafting legislation that would require the administration to seek a ruling from a special US intelligence court on whether the spying program was legal.


I may be wrong but there is hope, I appreciate your rational and insight thanks for keeping me grounded

[PhilipShore]

23. I agree

It is a typical corporate lawyer tactic – to create a smokescreen proceeding in the name of say the wrongs of wiretapping, but in reality they are not favorable to that issue -- but the opposite -- and the adversary is silenced because he thinks, that the corporate lawyers that started the proceedings are fighting for their rights.

I am not a lawyer.

It would be interesting to know –-from a lawyer –- what that type of lawyer is called.

I just call them corporate lawyers.

[stop the bleeding]

24. interesting - I appreciate your insight - thank you

[Joe Chi Minh]

40. Our judges in the UK do it routinely, when pronouncing a

pathetically inadequate sentences for particualrly hideous crimes.

They operate on the basis of political expediency, as they are told to. We already have a grotesquely high prison population compared to the rest of Europe, and Blair doesn't want more money spent on the building and operation of new prisons. Crime is abounding more than ever, because he is an arch-agent of chaos.

There are, of course, professional criminals and a growing number of monsters of all kinds; unfortunately, there are also large numbers of youngish people who have been marginalized from mainstream society, often into drugs, totally bereft of even the minimal guidance implicit in the norms of law-abiding mainstream society, historically in place. All of this, solely as a result of the viciously criminal policies, endemic to the far right governments we have suffered in recent decades, and these unfortunates represent a significant proportion of the prison population.

"This is a crime of such a hideously vicious nature, I'm afraid I have no option but to mark society's deepest disapproval by sentencing you to 100 hours of community service...", etc, etc.

Such is the extraordinary arrogance of our legal system, that they mock the public by calling things by transparently and grossly misleading names. It is, for example, normal to sentence a convicted person to multiple sentences on different particularly nasty counts, to be served CONCURRENTLY. Not consecutively! CONCURRENTLY! As if their person could be divided into as many sentences as were to be served concurrently. "Please M'Lud, would you mind splitting my ten year sentence into five two-year sentences to be served concurrently? It would be so much cheaper and more practical for the purposes of the public purse". You wouldn't be surprised if a judge acceded to such a request, precisely on those grounds.

[PhilipShore]

41. I as a non lawyer experienced it as well in Miami...

I as a non lawyer experienced it as well…When I filed a civil lawsuit (for reasons unrelated to 9/11 and politics) against some parties that were one of the top campaign contributors to Jeb Bush -- and one of the major parties involved in money laundering for the 9/11 terrorists.

I found the-- twisting of language -- by primarily corporate lawyers in the courts in Miami went all the way back to at least 1967.

They on paper were in theory representing such and such and issue, but in reality, they simply would just go thru the motions, and ignore written laws—to simply gain an advantage in the proceedings.

For example, they would write legal papers that would say all the parties were notified, but they clearly were not -- because I was one of the parties -- and I found out many years later. Then to counter my argument, they would say, well we all signed off on it, saying we did notify the parties so it was all legal, because we thought it was legal.

Additionally, the lawyers would say, “we cannot help you because the records were destroyed,” but -- then I made a bar complaint --against one of the Repuke lawyers; and they all the sudden recovered the destroyed records, and sent me a copy of them, and they would write all kinds of mumbo jumbo like, we advised him that the files were destroyed by the court, but they failed to tell me that he had a copy of the destroyed records.

And it goes on and on…such as a lawyer even drafted court papers saying they actually represented me, with my actual name on the court papers, and I would say, "well before I was told you had no involvement, because I was not even named on any document, but here is my exact name on the front page." Then they would say that was just a harmless error, meanwhile, the ones they say they were representing -- received a more favorable conclusion from the proceedings then me.

[Joe Chi Minh]

48. The "beasts of the earth" have no conscience or shame.

[Joe Chi Minh]

39. Do you mean "to find out" or to "establish affirmatively"?

[wtmusic]

46. Kinda doesn't matter--they will tire everyone with semantics

until everyone "agrees" that the law needs to be changed.

[ThomCat]

43. Please notice this

"and everyone ever linked to a terrorist watch list "

This (probably) includes everyone who has been put on the "no-fly" list. A lot of innocent people have been put on that list apparently because they are democrats, activists, or outspoken. So this would seem to mean that the government has approval to spy on anyone they put on that list.

(BTW: I was gone for 6 months for medical issues, and then I have been lurking for 6 months keeping quiet. This is my first post is a year.)

[stop the bleeding]

44. I feel honored that I was able to bring you out of lurk mode - welcome

back to DU

[ThomCat]

45. Thank you :)

It would have been very nice to come back in a nice silly thread in the lounge, but this topic is too worrisome to pass without comment.

[caledesi]

52. Welcome back TC!

:wave:

[goforit]

56. Glad your back and have your tin foil hat ready at full speed.

[goforit]

55. I do believe they were evesdropping before Sept 12th 2001.....

This is where propaganda is supreme at coveringthe real
issue at hand....

WAG THE DOG!!!!

[PhilipShore]

12. Did the FISA court sanction (penalize) the Bush lawyers?

I am not lawyer, any lawyers know if the court sanctioned (penalized) them?

http://www.washingtonpost.com/wp-dyn/content/article/20...

In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging system. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know -- and could not alert the court -- if it was seeking FISA warrants for people already spied on, government officials said.

Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete -- or face possible perjury charges.

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.

[HereSince1628]

13. Kick

[Olney Blue]

14. The truth is coming out.

[quaoar]

15. Yes, but....

has the truth reached critical mass yet?

[nuxvomica]

16. This story, if widely reported, will affect public perception

The poll numbers that say 51% of Americans support the warrantless wiretapping could change dramatically if it's reported that a FISA judge determined the program to be unconstitutional.

[stop the bleeding]

18. Check posts# 17 and 9 - I have something important there

or maybe not, but let me know.

Thanks again for this article!

[quaoar]

38. Bush's defense on this is obvious

He was doing it today. He gave a speech in which he talked about a 2002 plot to fly a plane into Liberty Tower in Los Angeles. The not-so-subtle message --- terrorists are trying to get you and I'm keeping you safe with things like this NSA spying program.

His defense is going to be that his NSA spying has produced results -- even if he has to make them up.

[Botany]

21. As long as there was no blow job invovled,

no crime happened.



bush and company broke the law ...... end of story.

[myrna minx]

22. Wow. I'm going to kick this.

[BootinUp]

25. Oh my, thats a hot story.

hmmm, wonder if it will get much television coverage.

[KansDem]

26. Watch for these spin statements to appear repeatedly in the CorpMedia

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.

Watch out for:
Bush is protecting us so he had to bypass cumbersome FISA requirements and confused FISA judges but don't worry, Bush had "probable cause" ("reasonable belief") to do what he did so we can all just calm down and let him do his job!

Watch for it!

[stop the bleeding]

27. But they were nimble and agile according to the 2nd part of post

#9

on edit:

Yes we do have to watch and counter the spin

[BookemDano]

28. How Soon Is Now

Stop the bleeding is correct we do need to watch for the spin and we need to not back down about this!We can't let them say it's the Liberals and they don't want to protect Americans from another attack and as a person from NY I am so sick of the 911 excuse they use!This is such a serious issue and we can't let it backfire but,I do think the fat is in the fire and there going to roast!

[KansDem]

29. Good catch!

Perhaps it is time to move on from "activist judges" to "nimble and agile judges."

on edit:
At the confirmation hearings for Bush's third Supreme Court nominee--
GOP slug: "Well, what qualifies you to sit on the Supreme Court?"
Bush toadie: "I'm nimble and agile!"
GOP slug: "GOOD! That's just what we're looking for!"

[stop the bleeding]

30. Tell me if you agree with

#17 or not on this thread, I am getting array of opinions, would like to have more feedback.

[wordpix]

31. saw Gonzo on Charlie Rose last night, looks like he is separating himself

slightly from Emperor *. He used phrases like, "according to the office of the president," instead of making solely legal arguments.

[stop the bleeding]

32. Doesn't the "office of the Prez" get advice from their lawyers -

like the Harriet and Gonzo - good find language is everything - people need to realize this.

tell me what you think of post# 17

[Catrina]

36. You highlighted the judges' contention that the WH argument

would be found to be unconstitutional if it was tested in court.

Then you highlighted Arlen Specter's threat to put the matter of the legality of the WH's claim before a court to test it.

This is so difficult to figure out. Your theory that this could finish the WH depends on

A) Arlen Specter is aware of the judges' opinion and believes it to be true and ....
B) Arlen Specter agrees with them and is threatening the WH ....

That would mean that Arlen Specter is sincere in his concerns and is putting his country before his party.

Otoh, considering that I have great difficulty trusting any of the current Republicans it could be that

A) Arlen Specter is aware of the judges' opinion but has received the usual Repub. twisted legal assurance that they can be shown to be wrong if the case is tested in court.
B) Assuming that is the case, the WH/Repubs, realizing this is blowing up out of control, decide to make a pretense of demanding the WH provide information, making them sound as though their country comes before their party. They would rather respond to a Republican demand than a Democrat demand, therefore the apparent anger of some Repubs. Bush will later thank them for being vigilent and not blame them for what was really the fault of the partisan democrats. They were only doing their duty.

When it's all over, a court will rule in Bush's favor, Bush will apologize for not being able to 'come clean' at first because of 'national security' but once his program was leaked by a 'traitor' in the press (and the investigation into that is ongoing) he came to the conclusion that there was no further point in not proving his point by having it 'tested in court' and assuring the American people that he was only protecting them from harm.

He comes out looking like a great leader and the Dems, as usual are blamed for putting partisanship before security.

Wish I could trust Arlen Specter ......

[stop the bleeding]

37. Very interesting analysis and thank you

I really appreciate the feedback

[calimary]

33. Kicked and recommended - heartily!

We need to keep pounding this.

Visualize IMPEACHMENT!!!
THIS just might do it...

[acmavm]

34. They can hardly contain all their sleeze now. Could this be the

reason for all the false indignation over Coretta Scott King's funeral?

I think so. Teehee.

[pinklefoot]

35. Why can't we

impeach his monkey butt right now? Enough evidence has come to light that says the president broke the law. If the repubs can impeach on lieing about the zipper on your pants, we can definitely start the process on this much.

[Gronk Groks]

42. In March '02 we had proof that FISA was working...

<snip>
In March 2002, the FBI and Pakistani police arrested Abu Zubaida, then the third-ranking al Qaeda operative, in Pakistan. When agents found Zubaida's laptop computer, a senior law enforcement source said, they discovered that the vast majority of people he had been communicating with were being monitored under FISA warrants or international spying efforts.
<snip>

FISA worked!!!!

Then why was warrant less wiretapping used?

Nixon Enemies List Redux?

[0007]

47. Goddamn, junior's burning up fast. He'll soon be but a pebble

in the sand somewhere. And now that sleazy James A. Baker III has got his finger prints all over this NSA and FISA scam. And get this he isn't taking questions. Busted!!

Read the whole article.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

Baker declined to comment through an office assistant, who referred questions about his FISA work to a Justice Department spokesman. Pentagon spokeswoman Cynthia Smith also declined to comment and referred questions to Justice officials. Justice spokesman Brian Roehrkasse said the department could not discuss its work with the FISA court.

[jazzjunkysue]

49. man. This shit's just falling outta the sky so fast, I don't know where

to go to duck!

It's al unraveling, folks. All of it.

And that's how a house of cards falls. All at friggin' once.

[stop the bleeding]

50. yep you said it all right - it is breaking left and right n/t

[sleipnir]

51. My question. WHY IN THE HELL DID SHE NOT SAY ANYTHING?

If there is any candidate to be a whistle-blower, it is this judge.

There comes a time when even the judge's robe must be cast aside for the perseverance of this country.

I fear that even the judges may fall silent to the threats of the Bush Empire.

When the future of the country rests on your shoulders, you have a duty to report these misgivings years ago to the American public. Damn the rest, and let fly the truth.

[luke_nichols]

53. Bush: God told me to Spy!

Sleepy, the President makes his way across his bedroom. He drinks him a warm glass of milk, while setting on his bed. He crawls in bed, rolls over and kisses Laura.

"Good Night Dear," and they click off the lights.

Within 7 minutes, sleep comes. The room is quiet, dark and warm. The dog is curled up in the corner.

Bush starts to dream. He's standing there, and all of a sudden, a bright light appears, and sucks him up into low earth orbit. Floating up there, he takes in the sight of the world. All of a sudden, he sees America. A voice starts to talk to him.

"George. George. I am with you."

"Who are you?"

"I am God. Remember when I told you to invade Afghanistan? I was with you. Then I told you to invade Iraq. I was with you. Look down below, what do you see?"

"I see America, God. I see a land flowing with milk and honey."

"George. Those people have too much freedom. I want you to start spying on them George. Do as I say, for I am God."

All of a sudden, Bush pops wide awake. It is morning.

He jumps out of bed, running across the room, pulling his robe tight around him.

"What is it honey?," asks Laura.

"Not now dear. I'm on a mission from God.!"

He runs into the Oval Office. Grabbing the phone, he says:

"Get me the Director of the NSA."

****

What you have just read is a plausible account of why Bush feels the need to spy on us. It may be true, or it may not be. I feel at this juncture of our existence as Americans, we need an explanation on why President Bush is running our Country, seemingly without a Check or Balance, and Congress seemingly is setting on its hands.

Luke

[magellan]

57. ** There's evidence BushCo's domestic spying program began BEFORE 9/11 **

If you haven't heard about this, discussion of the Truthout article and link to the supporting NSA document are here:
http://www.democraticunderground.com/discuss/duboard.ph...

Okay, can't R now, but KICK!

[RUMMYisFROSTED]

59. Baker.

Newman!