Judges Infuriated by Bush’s Warrantless Spying

Judges Infuriated by Bush's Warrantless Spying

UPDATE: Alberto Gonzales, our attorney general, speaking on “Charlie Rose,” just said Vice President Dick Cheney is “more of an expert than I am,” when speaking about the NSA warrantless wiretapping program. Get the picture?

“Between 1979 and 2004, (FISA) approved
18,748 warrants and rejected five.” 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. —snip— 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.
Program
May Have Led Improperly to Warrants

This is getting interesting, really interesting.

U.S. District Judge Colleen Kollar-Kotelly was infuriated when
she found out about Bush's illegal wiretapping. She was warned about the program
through a “top Justice Department lawyer.” (Evidently, warrantless
monitoring of phone calls and e-mails didn't float FISA's legal boat. The nerve of that uppity judge.)

Judge Kollar-Kotelly and her predecessor, Judge Royce C. Lamberth
(the presiding judge on 9/11), flatly warned that no evidence gained through
the illegal wiretaps could be used to get a warrant. (Drats, what now?)

Oh, and they both agreed not to disclose the program to the other
10 FISA judges. (Whatsup with that?)

As I read the Washington Post article, the FISA judges had what
is called a “federal screening system” in place to protect
them from getting bad info. But the lawyer in charge of the Justice Department's
Office of Intelligence Policy and Review, James A. Baker, found out that Justice had screwed up and info hadn't been delivered through the FISA screening system. When the judges got wind, Bush's NSA fun was suspended. (I hate when that happens.)

See, without a “firewall' between the Bush illegal wiretapping
zealots and the FISA court, the judges felt a little vulnerable. (We hear that…)

James A. Baker, the counsel for intelligence policy at Justice,
seems to be a FISA court hero in all this, because he actually shared info and
let the FISA judges know what the hell was happening. (Sharing information, wow,
how novel.)

Ready for the juicy part?

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. Program
May Have Led Improperly to Warrants

So, since the judges didn't feel obliged to rule on the president's
warrantless eavesdropping power, they invented a system. Any evidence obtained
through Bush's illegal wiretapping would be “tagged” and only presented
to the presiding judge, but not used as the “the basis” for getting a warrant.

According to the Post article, Baker was not really considered
a team player, in the sense of being part of all the president's men, but because
the judges trusted him implicitly, he was crucial to what Bush was trying to
do, so they left him alone.

Then it all came to a screeching halt, when in 2004, Baker got
bugged — pun intended — that he wasn't getting all the information about the scope of the NSA
program. Believe it or not, when Kollar-Kotelly complained to Ashcroft, he suspended
the program. Then they made Justice swear they'd gotten all the info, or face
perjury charges.

But in 2005, it happened again, with Baker finding out that at
least one application for a FISA warrant had some iffy NSA crap in it. Kollar-Kotelly
was told some low level DoD idiot had made the mistake. (Remind you of the scapegoating
of the grunts in Abu Ghraib?) Rummy even got called on the carpet. (My
interpretation, but the reporter calls it “asked” Rummy to “ensure”
it wouldn't happen again.)

But the real Wha? came when the FISA court judges heard General Hayden and Attorney General Alberto R. Gonzales insisting that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is involved in the call. (Seriously, imagine the judges surprise.) And then, at the hearing Monday, Gonzales had the stones to tell the Senate Judiciary Committee that the “reasonable
belief” standard is merely the “probable cause” standard by another
name. (A whopping pile of unadulterated poo-poo.)

The conclusion to this latest tale is that a lot of people knew President Bush had his team at Justice and the NSA directing an unconstitutional program of illegal wiretapping. A program that, despite Baker's best efforts at Justice, not to mention the FISA judges crafting “firewalls” and other maneuvers, still remains below the legal line.

Now you will have to excuse me, because Alberto Gonzales is spinning more fiction on “Charlie Rose.” I'm going to need a drink for this one.