FISA for Nothing

Now President Bush has the law he and Director of National Intelligence Mike McConnell set out, more than a year ago, to manipulate Congress and the media into giving them, perhaps it's time to consider once again the role played by Spc. Alex Jimenez. Jimenez was abducted by Iraqi insurgents in mid-May 2007 and probably killed very soon after.

But he provided a convenient peg on which McConnell and the rest could hang their specious claims about the flaws in FISA, claims that were believed by the Senate Intelligence Committee and by the New York Times.

On May 1 last year McConnell, speaking at a session of the Senate Intelligence Committee, asserted four or five times that intelligence officials wanting to intercept communications between two foreign terrorist suspects outside the United States in some circumstances needed to get a warrant from the FISA court. This requirement, never envisaged by the authors of FISA, was apparently slowing down intelligence collection at a time when the United States needed to be on constant alert lest a new terrorist attack should escape detection.

Within two weeks came the abduction of Jimenez, and some time after that we learned the awful truth -- that FISA requirements had delayed surveillance on his captors, wasting precious hours while National Security Agency lawyers worked their way through a bureaucratic maze to ensure that foreign terrorists' Fourth Amendment rights were respected! How that must have gone over with talk radio audiences! But it was never true. The FISA never required a warrant before intercepting communications between two non-U.S. persons (meaning those who are neither U.S. citizens nor permanent residents) in a foreign country.

Just consider that a military intelligence regulation, reissued in June last year, makes clear that all that was needed to eavesdrop on Jimenez's captors was that a designated officer in the field give the order. The regulation contains a page titled "Summary of Change." If FISA warrants were now required before wiretapping foreigners outside the U.S., as McConnell claimed, then why wasn't that change noted here, on this page? FISA, according to former Deputy Attorney General Philip Heymann, must be obeyed by any U.S. government agency conducting intelligence operations that come under its purview; so, if what McConnell had asserted was true, this regulation, Army Regulation 381-10, should have been amended to reflect that -- but it was not amended.

Regarding this, here is a brief excerpt from an e-mail correspondence about Jimenez that I had with a U.S. army public relations officer in Iraq:

MAJ ANTON D. ALSTON MNF-I Press Desk Operations Officer [e-mail] DSN 239-8799 VOIP 243-2221

-----Original Message-----
From: Robert Davey [mailto:[e-mail]]
Sent: Wednesday, January 16, 2008 4:11 PM
To: Alston, Anton D MAJ MNFI STRATEFF COMMS DIV
Subject: Re: Spc. Alex Jimenez

Dear Major Alston,

I have been reading "Army Regulation 381-10," in particular section
5-6, governing electronic surveillance of non-U.S. persons abroad.

Under AR 381-10, the authority to approve surveillance may be
delegated by "any U.S. general/flag officer at the overseas location"
to "deputy commanders, chiefs of staff, senior intelligence officers,
corps commanders, division commanders, or the responsible MI brigade
or group commander."

As you may know, it has been reported that there was a 9-hour delay
in getting approval under FISA for surveillance on the insurgents who
abducted Spc. Alex Jimenez last May.

Can you explain why American officers in Iraq, eager to begin
surveillance of Jimenez's captors, did not consider AR 381-10
sufficient to authorize that surveillance?

Thank you,
Sincerely,
Robert Davey

Major Alston replied thus:

On Jan 16, 2008, at 8:20 PM, Alston, Anton D MAJ MNFI STRATEFF COMMS DIV wrote:

Sir,

For security reasons, we do not discuss specific information of the
ongoing search for our missing Soldiers.

The best source for any other further information would be the
Soldiers' unit, the 2nd Brigade Combat Team, 10th Mountain Division, which is based at Fort Drum, New York.

You can contact the Fort Drum Public Affairs Office at:
[e-mail]
[phone]

We are continuing to investigate their disappearance and I can't share
any other details at this time.

Thank you,

MAJ Alston

Update: After I wrote and submitted this post the news was released that the U.S. Army had recovered the body of Alex Jimenez. The news was broadcast on NPR the morning of July 11, within 24 hours of President Bush's signing of the new FISA reform law.

Comments

[research]

FISA is about ultimate spying power over every one in the world.

It's about Orwell's 1984 unlimited surveillance.

From http://www.huffingtonpost.com/users/profile/Lemeritus

Suggest you read Motion for Leave to Participate in Proceedings Required by Section 702(i) of the FISA Amendments Act of 2008, filed July 10. I

http://www.aclu.org/pdfs/safefree/fisc_motion_20080710.pdf

[Michale32086]

This one incident notwithstanding, there ARE many flaws in FISA.. It is completely and woefully unsuited for CT operations.

It should be relegated back to what it was intended for (espionage activities) and a new system devised specifically for Counter Terrorism operations.

Michale.....

[bgregs]

And your proof????

[Michale32086]

Over two weeks of YA'ALL beaching and whining about FISA should be proof enough..

If it isn't then the only proof I can offer is personal experience, which you have already stated you won't believe...

Ergo, it's a moot point.

Michale.....

[JohnFromCensornati]

The one trick pony admits that the law we *needed* is flawed!

[Michale32086]

I have always claimed that FISA is inadequate for CT operations. This is documented. HR6304 is a good start, but it still doesn't make for good CT operations.

It's better than NOT having HR6304, that much is certain.

Michale.....

[mgloraine]

This is the same Mike McConnell who lied about how their special wiretapping abilities had enabled the foiling of a terrorist plot in Germany, then had to take it back when the REAL investigators contradicted his falsehood:

http://www.nytimes.com/2007/09/13/washington/13intel.html?_r=1&scp=1&sq=McConnell+Sept.+13%2C+2007&st=nyt&oref=slogin

It's a pretty safe bet that everything which comes out of McConnell's mouth is a convenient fiction. It's hard to remember a time when our gargantuan National Security bureaucracy was actually involved in gathering intelligence rather than engaging in criminal acts abroad and obstruction (or perversion) of justice at home. If anyone were really interested in finding the hideout of the most dangerous terrorists, murderers and saboteurs in the Western Hemisphere, they are all conveniently located in and around Langley, Virginia. An actual law enforcement agency ought to round them up and put the criminal spy ring out of business before they succeed in destroying our democracy.

[Robert Davey - Huffpost Blogger]

See Robert Davey's Profile

McConnell has been misrepresenting FISA all along: to the Senate Intelligence Committee, to New Yorker reporter Lawrence Wright (article published 1/21/08), to the El Paso Times (interview by Chris Roberts, transcript launched on elpasotimes.com 8/22/07), to an audience at St. Mary's College of Maryland (1/16/08). During his talk at St. Mary's he also mischaracterized the status of the 9/11 hijackers by mistakenly calling Mohammed Atta a U.S. person. He must have known that none of the 19 hijackers were U.S. persons; they were all non-resident aliens. Yet McConnell said of Atta: "He went to Turkey, went to Europe, got over to Canada, we'd track him as a foreign intelligence target, and he crosses into the United States, he's now a U.S. person; he gets all of the rights and privileges that you get. He's invisible to your intelligence community."
This is completely false; Atta, being neither a U.S. citizen nor a permanent resident alien, was most certainly not a U.S. person. Now why would McConnell get a basic fact like that wrong?