more on Secret Court Says F.B.I. Aides MisledJudges in 75 Cases ( NY T)

------ Forwarded Message
From: "Paul Lembesis" <lembesis@xxxxxxxxxxxxxxxxxxxxxx>
Date: Sat, 24 Aug 2002 23:45:14 -0400
To: <farber@xxxxxxxxxxxxx>
Subject: Re: more on  Secret Court Says F.B.I. Aides MisledJudges in 75 Cases ( NY T)

 
Dave, I am a lawyer who spent 11 years working for the government on national security issues and arms control issues
 
I disagree with Stewart Baker's characterization of what happened as "screwups" and "sloppy."  In 75 cases the FBI misrepresented what was happening to a judge in a secret court (FISA).  They apparently were using the FISA court to obtain approval of searches that would not have been approved by an ordinary court.  (FISA does not require a showing of probable cause of a crime before a warrant will be issued. Instead, a wiretap will be allowed if it is shown that gathering foreign intelligence is "a significant purpose" of the wiretap.) The procedural requirement of FISA is a pretty basic and easy task -- just tell the judge if there is an ongoing criminal investigation, which would mean that you can't have a search satisfying only the FISA standards.  How could this happen 75 times through mere sloppiness?  It may have been intentional or it may have been a kind of willful negligence, but it is alarming that anything less than the strictest standards were followed in pleadings before a secret court.
 
I disagree even more strongly that the choice we have is between allowing this or allowing terrorism.  If the simple, basic rules had been followed in the 75 cases, then there would not have been pressure on the FBI to avoid using the FISA court in the Moussaoui case.  The real choice is to follow the rules and have the FISA court available for real terrorism cases, or ignore the rules and feel pressure not to use FISA when warranted.  In other words, follow the failure to follow the rules is what caused the reluctance to use FISA; the cause was not the judges' criticism. 
 
Also, we need to have a broader perspective.  Everyone is against terrorism and is willing to allow broader search powers in actual cases of terrorism.  The concern that (a) these broader powers will be misused in cases other than terrorism through misrepresentation, or (b) that people will be too easily suspected of terrorism, which could result in political abuses.  Most people, including myself, are willing to give the government a lot of leeway here, but we want to see that they are being careful in how the extraordinary powers are being applied.
 
 
Paul Lembesis
former counsel to the US START and NST Delegations
 
> ----- Original Message ----- 
> From: Dave Farber <mailto:dave@xxxxxxxxxx>  
> To: ip <mailto:ip-sub-1@xxxxxxxxxxxxxxxxxxx>  
> Sent: Friday, August 23, 2002 5:08 PM
> Subject: IP: more on Secret Court Says F.B.I. Aides MisledJudges in 75 Cases ( NY T)
>
>
> ------ Forwarded Message
> From: "Baker, Stewart" <SBaker@xxxxxxxxxxx>
> Date: Fri, 23 Aug 2002 15:34:24 -0400
> To: "'farber@xxxxxxxxxxxxx'" <farber@xxxxxxxxxxxxx>
> Cc: "Albertazzie, Sally" <SAlbertazzie@xxxxxxxxxxx>
> Subject: RE: Secret Court Says F.B.I. Aides Misled Judges in 75 Cases ( NY T)
>
> That's unfair, Dave.  These are screwups and shouldn't have happened, but the court doesn't say they were intentional. 
>
> In fact, the investigation the FISA Court called for, and the sanctions it imposed, were fresh in the minds of the FBI when they got a call from Minneapolis asking for a FISA order against a suspicious guy named Moussaoui.  That was August of 2001.  Not surprisingly, the FBI agents at the other end of the call weren't all that enthusiastic about doing a fast affidavit based on what French intelligence had said about Moussaoui.
>
> The FBI's resistance to the FISA warrant on Moussaoui may have killed our last plausible hope of stopping the attacks.  So, in the "real world," that's the real choice we face:  We can either satisfy our rocking-chair desire to discipline FBI agents for sloppy FISA affidavits or we can have a chance to stop the September 11 attacks.  In an ideal world, we wouldn't have to make that choice, but in this one we do.  And we make that choice every time we suggest that the biggest problem we face is not terrorism but an FBI that is out of control.
>
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