Jane Harman (D-CA) the Vice Chairman of the House Intelligence Committee was on Fox News Sunday, discussing the NSA wiretap issue. Ms. Harman is a voice of reason in party that seems to prefer scandalmongering over the mature substantive discussion necessary to move our nation forward safely in a time of war. There was no talk of impeachment, the favored topic of the moonbat Senator Boxer from Harman's state, no feigned indignation over infringing on the civil liberties of terrorists. On the whole a quite refreshing discussion.
As a senior member of the Congressional leadership on intelligence matters she discussed how she was fully briefed on the NSA program and agreed that it was vital to our national security. Her major complaint is that only those few select leaders of congress with these responsibilities were briefed. Not that she suggests briefing them all, as we know that would result in more leaks than the Titanic.
A few snippets from her official statement and appearance with Brit Hume here:
Office of Jane Harman: As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities....We must use all lawful tools to detect and disrupt the plans of our enemies; signals intelligence and the work of the NSA are vital to that mission. But in doing so, it is also vital that we protect the American people's constitutional rights.FISA Court Broken?
FOXNews Transcript: HARMAN: But it was made clear to me that conversations between Americans in America were not part of the program and require -- and I think they do -- a court warrant in order to eavesdrop on them.
And that's been a point of confusion, because some of the press articles allege that this is a so-called, as you said, domestic surveillance program. That's not what I believe it is.
...
HUME: What is your concern about the nature of the briefings?
HARMAN: My concern about the nature of the briefings, now that the program has been disclosed by the president, which is the only basis on which I could discuss anything with anybody else, is, number one, under the National Security Act of 1947 Congress is supposed to be fully and completely briefed on programs like this.
And instead, just this limited group of eight were briefed. This is not a covert action program, which is the only basis for a limited briefing.
HUME: You're now saying, however, that those briefings were insufficient. Why did you not, if you didn't, say so at the time and...take the matter to the president or whatever?
HARMAN: Fair question. And my answer, in hindsight, is that I came into an ongoing process. I believed that the legal framework was set, and the briefings were about the detail of the ongoing program. Remember, I support the program.
...
HUME: Well, let me just -- Let me come at this a different way, then. So far, however, your concerns about the program are, A, that Congress wasn't properly briefed; and second, that it was perhaps necessary to conduct some of this surveillance for the so-called FISA court to have been approached for a warrant to authorize it.
HARMAN: Right.
HUME: Now, having said all that, does anything you know about this program, whether from being briefed about it or not, raise a question with you about whether this surveillance should have been undertaken? In other words, was this a necessary thing...in your view, or was this not?
HARMAN: My answer to that is basically it is a necessary thing. We absolutely do want to know the plans and intentions of AQaeda andnd these copycat terrorist cells before they're able to attack us. It's a dangerous world. I think that the notion -- and by the way, you don't need a court warrant to do this -- that we are listening to Al Qaeda operatives abroad and trying to understand what they're planning to do is totally valid.
HUME: So if you're listening in on an Al Qaeda suspect overseas, and you're listening to all of his or her, as the case maybe, phone conversations, and suddenly he's on the phone to someone in the United States, or he's in the United States and you're listening, and he's talking to somebody in the United States, do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized, or to go there later, or what?
HARMAN: Well, I think that in the -- those conversations in the United States would be a perfect basis to get court approval. And there is a 72-hour delay mechanism in the FISA statute. So my answer to you is, number one, it is very important to learn the plans and intentions of our enemies.
And number two, we can do that within a legal framework that would give Americans comfort and actually give our court system comfort that the Fourth Amendment is being observed and that our system of laws that Congress has passed, including FISA, which was supposed to be the exclusive way to do electronic surveillance on Americans in America, are being observed.
There has always been the question in the background of this issue: Why didn't the President just go to the FISA court and make all this NSA business hunky dory? There are some legitimate questions that Harman raised concerning whether the President had the authority to act on his own and they will certainly be explored. But there are also some legitimate questions about the conduct and effectiveness of the FISA Court which was created by the Foreign Intelligence Surveillance Act of 1978.
In the first 22 years of the court's existence they modified (altered the scope of a warrant) only twice. Since September 11th they modified 179. Critics of the Bush Administration use this as proof that the Administration was exceeding it's authority. Let's take a closer look.
From Newsmax: "The suspected 20th hijacker Zacarias Moussaoui was arrested in Minneapolis on Aug. 16, 2001 - nearly four weeks before the 9/11 attacks - after an instructor at a local flight school he attended called the F.B.I. to report that he suspected the Moroccan-born terrorist was up to no good....Had the FBI examined Moussaoui's laptop they may very well have found links to the nineteen other hijackers and stopped thatrocitieses of September 11th and saved a nation from a war no one wanted.
In a May 2002 report the [NY]Times noted: "Two days later, F.B.I. agents in Minnesota asked Washington to obtain a special warrant to search his laptop computer."
However, there was a problem. The paper explained:
"Recent interviews of intelligence officials by The New York Times suggest that the Bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information."
"The F.B.I.," officials told the Times, "had become wary after a well-regarded supervisor was disciplined because the [FISA] court complained that he had submitted improper information on applications."
The secret court went so far as to discipline Michael Resnick, the F.B.I. supervisor in charge of coordinating terrorist surveillance operations, saying they would no longer accept warrant applications from him.
...
"Other officials," the paper said, complained that the FISA Court's actions against Resnick "prompted Bureau officials to adopt a play-it-safe approach that meant submitting fewer applications and declining to submit any that could be questioned."
But the FBI was discouraged from pursing a warrant from FISA to examine the computer because the information the FBI held on Moussaoui at the time of his arrest did not support probable cause that he was linked either to a foreign power or an international terrorist organization. The 2002 Joint House and Senate IntelligencCommitteete concluded as much in their report (PDF pages 319-321) a summary of which is provided here in HTML format.
FISA Judge Follies: Judicial Misconduct?
More recently the curious resignation of U.S. District Judge James Robertson from the FISA Court raises new questions about what exactly is going on behind closed doors. See The Strata-Sphere for questions regarding Robertson's possible role in the leak of the NSA program and again here (update 3) regarding any links he may have to discredited 9/11 Commissioner Jamie Gorelick, builder of the original wall that prevented "connecting the dots" to prevent the September 11th atrocities.
In the first week of January, a truly stunning example of possible misconduct by members of this court occurred when at least two judges spoke anonymously to the Washingtonon Post concerning issues that may come before their court. Andrew McCarthy (bio here), a former US Attorney who led the prosecution of the 1993 World Trade Center bombers described his concern in a National Review column : "If a judge pulled a stunt like this in a run-of-the-mill criminal case, it would be grounds for his removal. To have FISA court judges doing it is astounding."
NSA Program Saved Lives
The Brooklyn Bridge and World Trade Center.
Photo by Mike's America
Shortly after the NSA story broke, we learned (second item) that Iyman Farris, a terrorist with ambitions to kill US citizens and destroy the Brooklyn Bridge, was nabbed using this program and later convicted.
I have also asked repeatedly for one verifiable incident of US citizens not involved in terror that have had their civil liberties infringed by this program. The silence is deafening.
The brilliant columnist Mark Steyn pulls all the threads of this discussion together with his usual wit and his special personal touch:
Chicago Sun Times: It shouldn't be necessary to point out the obvious. But, unmoored from reality, wafting happily into fantasy land safe in the hermetically sealed Democrat-media bubble, Sen. Barbara Boxer and her colleagues are apparently considering impeaching the president for eavesdropping on al Qaida calls made to U.S. phone numbers. Surely, even Karl Rove can't get that lucky.
By the way, I'd love to see the witness list for that trial: Muhammad al-Jihad testifying that a week before he blows up a Bali nightclub he always makes a perfectly innocent call to his cousin in Milwaukee to ask how the kids are; Abu Musad al-Zarqawi testifying that he only called Howard Dean to issue a formal complaint about congressional Democrats stealing his rationalizations. Etc.
The Democrats and the media want to upgrade every terrorist into O.J. Simpson, insulated by legalisms and entitled to his own dream team. (Their figleaf, the court set up by the Foreign Intelligence Surveillance Act, which previously denied not a single request, has turned down hundreds in the years since 9/11.) The practical effect of the Dems' approach is to extend the protections of the U.S. Constitution to any dodgy character anywhere on the planet who has a U.S. telephone number in his Rolodex. Indeed, given that perfectly ordinary cell phones can be used almost anywhere -- this week, I spoke to an American in London by dialing his Washington cell number -- if the Democrats have their way, all terrorist cells in Europe or Pakistan would have to do to put themselves beyond the reach of U.S. intelligence is get a New Jersey-based associate to place a bulk order for Verizon cell phones.
This isn't a hypothetical situation. Consider Iyman Faris, a naturalized American citizen also known as Mohammad Rauf and nailed by U.S. intelligence through the interception of foreign-U.S. communications. He was convicted in 2003 for doing the legwork on an al Qaida scheme to blow up the Brooklyn Bridge. A "hardworking truck driver," he was introduced to Osama bin Laden while enjoying a well-earned vacation at a terrorist training camp in Afghanistan in 2000. At the request of bin Laden's aides, he researched the terrorist possibilities of "ultralight" aircraft. In 2002, he was commissioned by al Qaida to return to America and procure the materials for severing suspension-bridge cables and derailing trains.
Do you want Iyman Faris in jail? Or do you think he should have the run of the planet until he's actually destroyed the bridge and killed hundreds of people? Say, the Golden Gate Bridge just as you're driving across after voting for Barbara Boxer and congratulating yourself on your moral superiority.
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