December 19, 2005


Why Bush Approved the Wiretaps: Not long ago, both parties agreed the FISA court was a problem. (Byron York, 12/20/05, National Review)

In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.

Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

One example from today's reading and listening of why you'd circumvent the court: you find an al Qaeda laptop in a raid and it has a list of phone numbers in the United States. You'd obviously want to immediately start to listen in to the calls going into that number from overseas, or out to overseas, but you don't even know who's at the number.

National Security Meltdown (David Martin, 6/19/02, CBS)

The CIA and FBI are drawing most of the criticism for failing to follow up on leads that might have prevented the attacks of September 11th. But another intelligence agency - bigger by far than either the CIA or FBI - was also on the case. David Martin reports.

The National Security Agency eavesdrops on communications all over the world. For a few years, the NSA was actually listening to Osama bin Laden's satellite phone calls. But even that wasn't enough to tip off U.S. intelligence to the 9/11 plot or to earlier attacks on the USS Cole and two American embassies in Africa. Bin Laden probably didn't realize it, but he was mounting these operations just as NSA was going through the worst crisis in its 50-year history. In fact, in the very same month two of the 9/11 hijackers entered the U.S., the supercomputers NSA relies on to sort through billions of phone calls, faxes, e-mails and radio transmissions crashed. [...]

On any given day, the majority of intelligence that shows up in the president's morning briefing comes from the NSA, considered by many to be the cornerstone of American intelligence.

Some might therefore be alarmed to read a report by a team of NSA insiders concluding that the "NSA is in great peril."

"We're behind the curve in keeping up with the global telecommunications revolution," Hayden said.

The NSA is now trying to play catch-up to Silicon Valley and the cell phones and computers that have proliferated throughout the world.

"In the previous world order, our primary adversary was the Soviet Union," Hayden said. "Technologicaly we had to keep pace with an oligarchic, resource-poor, technologically inferior, overbureaucratized, slow-moving nation-state."

"Our adversary communications are now based upon the developmental cycle of a global industry that is literally moving at the speed of light ... cell phones, encryption, fiber optic communications, digital communications," he added.

Documents introduced at the trial of the four men convicted of blowing up two American embassies in Africa indicate that the NSA was monitoring Osama bin Laden's satellite phone as he allegedly directed preparations for the attack from his hiding place in Afghanistan. Even so, the NSA was unable to collect enough intelligence to stop it.

"Osama bin Laden has at his disposal the wealth of a $3 trillion-a-year telecommunications industry," Hayden said.

From about 1996 to 1998, when bin Laden was beginning his operations out of Afghanistan, NSA knew his phone number and was able to listen in on phone calls he and his top lieutenants made to Al Qaida cells around the world. But the terrorists were so careful and cryptic about what they said over the phone that the U.S. was caught totally by surprise when in August of 1998 truck bombs detonated simultaneously outside the American embassies in Kenya and Tanzania, killing 224 people.

One of the terrorists arrested after those bombings gave NSA another phone number - this one belonging to a cell phone in Yemen. Listening in on that phone gave the NSA one of the first leads that might have uncovered the 9/11 plot - two men were headed to a meeting of terrorist operatives in Malaysia. NSA immediately passed the information to the CIA.

The meeting took place in a high-rise apartment building on January 6, 2000. The CIA didn't have time to plant any listening devices, but it was able to get pictures of the two men, who later turned out to be two of the hijackers who flew into the Pentagon. On January 15, 2000, the two hijackers entered the U.S. Nine days later NSA suffered its computer meltdown.

Posted by Orrin Judd at December 19, 2005 3:58 PM

Even if the numbers were overseas numbers, it sounds like the Democrats demand that Bush get a warrant just in case they call an American citizen.

Posted by: Timothy at December 19, 2005 4:22 PM

If that's the case, I'm surprised the initial Patriot Act - or later legislation -wasn't used to push the necessary changes through.

Posted by: Ali Choudhury at December 19, 2005 5:12 PM

The AG didn't, and doesn't, believe any changes are necessary.

Posted by: Timothy at December 19, 2005 5:49 PM

With Ms. Rowley running for Congress in Minnesota as a Democrat, and basing her campaign on security failures by the Bush Administration around the terrorism threat, it's going to be interesting to see how she handles any discussions about FISA, if she told Muller it was an impedement while the Democratic leadership is touting it right now as the greatest thing since sliced bread when it comes to expediating terrorism investigations.

Posted by: John at December 19, 2005 11:53 PM