This is a follow-up to
SHOCK's excellent diary, "Federal Court Rebuffed
Ashcroft about wiretaps (in 8/2002!)."
As he correctly points out, the secret FISA court had rebuffed the FBI for basically abusing the FISA process. This decision and very public rebuke of overzealous domestic spying was appealed by John Ashcroft's Justice Department in 2002. Ashcrosft won on appeal, and Justice was provided with new powers to wage the GWOT.
And, if you read on below, you will see that Ashcroft was quite happy with his new powers and abilities and they were used quite extensively in the following year.
So, the question we must all ask now is: Why did the President Bush still think this was not enough???
More below the fold...
The following are articles that have fallen down the ole Memory Hole:
"Court Widens Wiretapping in Terror Cases," LA Times, 11/19/02:
WASHINGTON -- Atty. Gen. John Ashcroft and the FBI have broad power to wiretap the phones and secretly search the computers and homes of individuals who can be linked to foreign terrorists, a special spy review court ruled Monday.
Proclaiming a major victory in the war on terrorism, Ashcroft said the decision "revolutionizes our ability to investigate and prosecute terrorists" because it permits criminal investigators and intelligence agents to work together and to share information. Ann Beeson, who heads the American Civil Liberties Union's Technology and Liberty program, said she was "deeply disappointed with the decision, which suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants." Other lawyers were uncertain whether the case could be appealed to the U.S. Supreme Court.
...
All three judges on the review court -- Ralph B. Guy of the 6th Circuit in Cincinnati, Edward Leavy of the 9th Circuit in San Francisco and Laurence H. Silberman of the D.C. Circuit -- were originally named to the federal bench by President Reagan.
In May, the seven-member Foreign Intelligence Surveillance Court ruled that Ashcroft was improperly trying to broaden the FBI's spying abilities. His actions were based on the USA Patriot Act, passed in the aftermath of the Sept. 11 terrorist attacks, which appeared to lower the wall between intelligence gathering and criminal investigations.
That decision, made public in August by the Senate Judiciary Committee, which had been pushing for information about the secret court, contained blistering criticism of the FBI and the Justice Department. The decision accused the FBI of misleading the FISA court in 75 cases, all during the tenure of FBI Director Louis J. Freeh.
...
At a news conference, Ashcroft stressed that the government was not being given a free hand to spy on ordinary Americans.
"We haven't really changed the threshold" for undertaking a search, he said. Agents must still show that the target is tied to a foreign terrorist group.
Rather, "this will greatly enhance our ability to put the pieces together" to make better use of intelligence information, Ashcroft added.
...
Dratel said that it would now be easier for the government to use the FISA court to obtain a judicial order to wiretap or search the offices of a businessman suspected of money-laundering if the case involved activity in the Middle East or South America or some other place that has "a terrorist penumbra." Moreover, Dratel said that unless the person eventually was charged with a crime, he might never know that the search or the wiretap had been conducted.
Laurence Silberman? As in Silberman-Robb? Oh, the delicious irony...
Note, too, that the original complaints about what the FBI was doing in regards to FISA came out of Clinton-era activities in Louis Freeh's FBI, but the ruling would have affected the War on Our Freedoms.
"A Green Light to Spy," NY Times, November 19, 2002 - the Times may have buried the Bush story in 2004, but they were none too happy in 2002!:
The appellate ruling is procedurally troubling. The court's sessions are held in secret, and the government is the only party allowed to appear before it. The members of the court are hand-picked by Chief Justice William Rehnquist. Ignoring the diversity of views on the federal bench, he selected three judges appointed by President Ronald Reagan. The combination of one-sided arguments and one-sided judges hardly instills confidence in the court's decisions.
More disturbing, though, is the court's substantive decision and the way the Justice Department is interpreting it. The decision gives the government a green light to remove the separation that has long existed between officials conducting surveillance on suspected foreign agents and criminal prosecutors investigating crimes. Attorney General John Ashcroft has announced that he intends to use it to sharply increase the number of domestic wiretaps, and that he will add lawyers at the F.B.I. and at federal prosecutors' offices around the country to hurry the process along.
"Broad U.S. Wiretap Powers Upheld," WaPo, 11/19/02:
Under yesterday's ruling, they will now be able to obtain those warrants more easily and pass on the information they gather to criminal prosecutors.
Bush administration officials stressed that, in their view, the appeals court was not granting authority to wiretap a wider range of suspects. Rather, Ashcroft and other officials said, the ruling simplifies the process for running such investigations by avoiding the need to halt an intelligence probe once investigators observe evidence of a crime by the suspected terrorist.
"We think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close," the three-judge panel wrote in the ruling, parts of which were classified. "We therefore believe firmly . . . that FISA as amended is constitutional because the surveillances it authorizes are reasonable."
The appeals court also found that government lawyers appear to have been misinterpreting secret wiretap law since the 1980s by construing limitations that did not exist within federal statutes. Many lawmakers and other critics have argued since the Sept. 11, 2001, terror attacks that Justice and FBI attorneys had grown too timid in their pursuit of secret warrants, citing, for example, their failure to seek one in the case of alleged terrorist conspirator Zacarias Moussaoui, who was detained weeks before the strikes on New York and Washington.
Victoria Toensing, who oversaw terrorism prosecutions in the Reagan Justice Department, said the court's ruling was long overdue, and that misinterpretations of surveillance law had severely hampered prosecutors and investigators.
But Ann Beeson of the American Civil Liberties Union said she was "deeply disappointed" in the decision, contending that it sets up the intelligence court as a "rubber stamp" for "intrusive" surveillance warrants.
"As of today, the attorney general can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails and conduct secret searches of Americans' homes and offices," Beeson said.
...
In seeking review, government lawyers wrote in court papers that the intelligence court had "wholly exceeded" its authority in refusing Ashcroft's requests. They argued that Congress had clearly approved broader surveillance authority in the wake of Sept. 11.
So, as you can see, John Ashcroft was quite pleased that a three Reagan appointees had given him the powers he felt he so desparately needed to fight the GWOT. In effect, the ruling made it easier for DHS to wiretap, and still comply with FISA and the 4th Amendment.
So, then, why did the President still authorize the NSA to circumvent them???
"U.S. Expands Clandestine Surveillance Operations,", LA Times, 4/5/03:
WASHINGTON -- The Justice Department has stepped up use of a secretive process that enables the attorney general to personally authorize electronic surveillance and physical searches of suspected terrorists, spies and other national-security threats without immediate court oversight.
Atty. Gen. John Ashcroft told the Senate Judiciary Committee on Tuesday he has authorized more than 170 such emergency searches since the Sept. 11 attacks -- more than triple the 47 emergency searches that have been authorized by other attorneys general in the last 20 years.
...
Now, Justice Department officials are pushing the law's limits even further. Since the Sept. 11 attacks, officials have seized on a provision that allows them to launch emergency searches signed only by the attorney general. The department must still persuade the secret court that the search is justified -- but officials have 72 hours from the time the search is launched, and such requests are almost always granted.
...
"That is a startling increase," said Timothy Edgar, a legislative counsel for the ACLU.
Edgar and others are concerned that law-enforcement officials are pursuing run-of-the-mill criminal cases under the guise of national security. The trouble, they say, is that defendants' customary 4th Amendment rights against unreasonable searches don't apply in FISA cases. Others point to the fact that the number of search warrants obtained by federal investigators in intelligence cases in recent years has started to outstrip the number in criminal cases.
The process "is getting attenuated from any kind of effective judicial oversight," said Joshua Dratel, a New York lawyer who helped represent the National Assn. of Criminal Defense Lawyers in a challenge to FISA last year. "The question now becomes, 'How much can a court tolerate before it reins this in?' "
So, it is clear that Ashcroft was quite busy, and quite public, about using his newfound powers, and ordering wiretaps at a record rate. There are not complaints about "speed" and not being able to effectively fight the GWOT.
In other words, the Administartion and Ashcroft got exactly what they wanted in terms of a court interpretation of FISA, and the result was a more agressive pursuit of terrorists using the new rulings,
So... why did the President repeatedly authorize NSA to go around the less-stringent requirements?
"US spy agency plans to hire 7,500 people in five years," Xinhua, 4/11/04:
WASHINGTON, April 10 (Xinhuanet) -- The US National Security Agency (NSA) plans to hire about 7,500 people over the next five years to meet "the increasing needs of the changing intelligence community," a press release posted its web site said.
The NSA, under the Department of Defense, is looking to recruit1,500 people by September this year and another 1,500 in each of the following four years, the secretive agency's largest recruiting effort since the 1980s.
The agency is looking to increase the number of new hires by 37percent compared to just one year ago and almost 50 percent more than in 2002.
The NSA is looking for people who are experienced in foreign languages, especially in Arabic and Chinese, and wants to hire people with specialties in intelligence analysis, signals analysisand technical fields such as mathematics, computer science, engineering and physical sciences, according to the release dated April 7.
Because spying on Americans is hard work!!!
Seriously though, as late as 2003, things seemed to be going pretty well. There seems to be no need to ignore the Constitution via Presidential Order - the Justice Department had the powers it wanted, and NSA was busy enough that they had to go on a hiring spree.
So.... WHY????