Brad DeLong's Semi-Daily Journal (2004)

I'm sick of all this talk about GWB planning Iraq immediately upon taking his oath. I actually am grateful that he decided to do something about an odious regime.

It's fantastic that he had the intelligence and leadership and morals to address the bad situation in a critical part of the middle east. Would you have preferred that he did nothing and receive kickbacks like other countries?

The evidence is overwhelming to support Clarke's claim about the administration's fixation with Iraq, as well as the distraction that became from preparing for and prosecuting the war on terror.

There is an additional argument to be made, however, that the massive national security disaster of September 11, 2001 was not primarily a failure of planning, bureaucratic coordination, or vigilance by either the Clinton or Bush administrations. Instead, the root cause of the American failure on 9/11 was psychological. That is, the American national security establishment simply could not absorb, process, and filter data regarding threats so fundamentally at odds with its post-Cold War mind set and conceptual framework. Perhaps more than anything else, the U.S. calamity of September 11 can be attributed to cognitive dissonance.

For more, see:

"Cognitive Dissonance, Terrorism and 9/11"
http://www.perrspectives.com/articles/art_cogdis01.htm

The "cognitive dissonance" may run deeper than simple habitual stubbornness. People are SCARED by our Brave New Century, and well they should be. It was known for decades that terrorists could wreak havoc just by hijacking one big plane and using it as a weapon -- my God, hijacking the Goodyear Blimp and using it to try to blow up 40,000 people at the Super Bowl was the theme of Thomas Harris' first novel back in 1974, and Iranian terrorists set off a nuke on an airliner over Washington in an SF novel back in 1980. But nobody wanted to do anything about it, because it would be difficult and expensive -- the temptation to stick your head in the sand and just hope it would never happen was simply too powerful. And the same thing has been true for decades for nuclear and bioweapon proliferation, despite their tremendous and obvious potential for bringing all human civilization down in ruin.

Moreover, it's STILL true. It is as easy as ever for any small clump of terrorists -- Moslem or otherwise -- to hijack or simply steal a big cargo plane for the purpose, and it is by no means impossible for them to hijack another airliner for the purpose (although that will certainly be harder than it was). And governments -- and their citizens -- worldwide are also still sticking their heads in the sand where the imminent Armageddon potential of nuclear proliferation is concerned (soon to be joined by the proliferation of more and more potent bioweapons, thanks to the wonders of genetic engineering). One can argue that both trying to keep Iraq under control AND chasing Al Qaida around Afghanistan ad infinitum are both serious -- and maybe disastrous -- distractions from our REAL top priorities.

Nothing we didn't already know, maybe, but it sure is impressive to watch the corroboration pile up.

Just like 'cut taxes on the rich' was their single prescription for all domestic ills, 'get Saddam' was their single prescription for all threats from the larger world, before, after, and on the very day of 9/11. The day that 'changed everything' didn't change their focus one bit.

Of course, having one remedy for all problems doesn't help when actual problem-solving is called for. And it goes without saying that when you're selling something as the remedy for all problems, you're selling snake oil.

Imagine how much further we would be on the War on Terror and in democratizing the Middle East if our country wasn't hamstrung with the Iraqi quagmire. Under President Gore;

1) The Iraqi Baath regime would either be constrained by smarter sanctions and agressive inspections, as was happening in 2002, or possibly deposed by a UN-mandated coalition if they resisted the will of the world still united by the tragedy of 911.

2) Continuous presidential engagement with Palestine and Israel, a la Clinton, would have led to further progress on peace and stability at the primary source of tension in the Middle East, reducing the sense of hopelessness among Muslims.

3) Syrian cooperation in pursuing Al Qaeda would have been rewarded with more US engagement assisting the new regime's exploratory steps toward pluralism and directly influencing democratization in Lebanon, a country that had a thriving democracy, unlike Iraq, 50 or so years ago.

4) Pakistan would have been held accountable for proliferating nuclear weapon technology.

5) Saudi Arabia would have been held accountable for funding Al Qaeda.

6) US forces would have been deployed to Tora Bora. Bin Laden would be dead or on-trial by now.

7) Or, all of this would've happened without the trauma of 911 as Clarke would've have been listened to, cabinet officers would've stayed at "battle stations", Gore's administration focusing on asymmetric threats rather than ICBMs would've linked FBI & CIA data and prevented the tragedy using well directed police work and military action against the training camps in Afganistan.

It makes me sick to think that all of these things, so likely given the hard work and clear thinking of Clinton & Gore, were denied us by a judicial decision the Supreme Court is so proud of they've begged other courts and future generations to never use it as precedent.

Bush doing nothing would've been better than what we got but that's not saying much.

I don't think that Bush saying "after we have dealt with Afghanistan, we must come back to Iraq" exactly constitutes proof that Bush had an irrational, Ahab-like obsession with Iraq. The real trouble with Bush's security policy is that he didn't do a proper job of dealing with EITHER country -- or with a lot of other vital security-related issues. He keeps leaving all his jobs half-finished and running off to confront (inadequately) yet another dragon.

You're all *still* being played.

It's not about Iraq.

It's about civil war here in America.

To correct the facts in the The Observer article.
"Blair became the first foreign leader to visit America after 11 September" is false. Chirac came the day before (http://edition.cnn.com/2001/US/09/19/ret.bush.france/).

Yeehaa...first Clarke, then VF and, yet to come, Woodward's rumored apologia for Bush at War.

Hey "You"
Ask the families of the six hundred soldiers killed in this crappy little war if they think this was such a good idea. And while you are at it, go ahead and ask the families who have been without dad's and mom's the last year, and those who will be without dad's or mom's the next year, and those who will be without dad's or mom's forever if this was a really good idea. I can tell you from personal experience that this war has been one hell of a price to pay for the folks who have had to sacrifice for the lies and/or incompetence of this president.

With few exceptions those who signed up in the Armed Services understand the responsibility attached to the priveldges of serving our nation. We also entered the service with the hope that that understanding of responsibility would not be abused by an unnecessary conflict costing hundreds of lives and billions of dollars simply for political grandstanding having nothing to do with defense of this nation. Yeah, yeah, yeah, Sadaam is gone, the wicked witch is dead. . .many lives and billions of $'s later-resources that could hve been used to make us safer for years to come. At the very least-if you as a leader think and feel that you must forever change the way this country wages war, be up front about it. You, your final question is rather strange. You seem to think that there were only two options. Invade Iraq or take kickbacks. Surely there were other options to consider.

"medically, I believe that this manner of thinking is called schizophrenia:at any rate , it is the power of holding simultaneously two beliefs which cancel out. Closely allied to it is the power of ignoring facts which are obvious and unalterable, and which will have to be faced sooner or later. It is especially in our political thinking that these vices flourish. Let me take a few sample subjects out of the hat. They ahve no organic connection with each other:they are merely cases, taken almost at random, of plain , unmistakable facts being shirked by people who in another part of their mind are aware of those facts."

22 March 1946

1) see comment by Jan above
2) see first comment by Bruce Mommaw above
3) See title of Brad's post. We know this already so why is it news ?
4) People argue with Clarke's claim that the Bush amdinistration was focused on missile defences not terrorism before 9/11 when the Bush administration had done everything possible to make that clear.
5) Why do people deny that Bush insisted on claiming a link, unsupported by evidence, between Saddam Hussein and 9/11 when he has publically done so and said he has done so ?

By the way this news might be news to the dead tree debate but it is not news in the blogosphere. The Observer is just catching up with obsidian wings
http://obsidianwings.blogs.com/obsidian_wings/2004/03/corroboration_o.html
note the date March 22.

Fuck you, "You".

"Regime change was already US policy."

Yes, it was U.S. policy, as declared by Congress during the Clinton administration. So, what's the big deal about focusing on declared U.S. policy and trying to enlist allies?

Hey you,,Ask the 40,000 draftees that Bush won't let out of Iraq beyond their ETS date.

Hey you,,Ask the 40,000 draftees that Bush won't let out of Iraq beyond their ETS date.

Well "me" clearly demonstrates what the theme of this posting about the psychology of Bush & his supporters is all about.

Dan wrote, "Yes, it was U.S. policy, as declared by Congress during the Clinton administration. So, what's the big deal about focusing on declared U.S. policy and trying to enlist allies?"

There's a difference between a policy and a particular implementation of that policy. And sometimes policies are never implemented, or implemented on a vastly different timescale. And prioritization of a set of policies is important. And sometimes policies conflict with one another. And...

" Details of this extraordinary conversation..."

"Extraordingary" being a synonym for "logical"?

Actually, blowhards like dan have apparently failed to read the Iraq Liberation Act, whose purpose was to support democratic opposition forces against saddam hussein. The Iraq Liberation Act most assuredly was not an authorization for an invasion of Iraq, and attempts to claim that the Bush war merely continued Clinton and Congressional policy towards Iraq are completely and totally untrue.

As for Patrick, we all know what he considers to be logical thought: anything the bush administration wants him to think is, by definition to Patrick, logical. Any questioning is illogical.

The psychology of "we must do something, anything" instead of stopping to think about HOW you do it, seems to continually trip-up a lot of people.

You, if you are sick of this discussion, why come to a site where it is a staple?

Here's something else I consider to be logical (since I've been saying it ever since 9-12-01 myself):

http://www.commentarymagazine.com/article.asp?aid=11704013_1

----------quote------------
As with much else in our national life, the bacillus now grown to plague America’s intelligence apparatus took root in the unrest of Vietnam and the upheaval of Watergate. The perception of national security became intertwined in those years with an increasingly unpopular war that ended badly. For a generation of activists soon to take up positions of influence in politics, academia, and the media, the antiwar movement inculcated a lasting aversion not only to the exercise of American military power but to the agencies tasked with assessing threats to our national security, not to mention the real-world grunt work of intelligence.

Watergate deepened the aversion. For one thing, the burglars included former intelligence officers. For another, President Richard Nixon enlisted the CIA to obstruct the FBI’s investigation of the break-in. For a third, his White House "enemies" operation featured spying against domestic political adversaries. Hot on the heels of these misdeeds, the CIA became enmeshed in other domestic spying scandals that were subjected to high-profile probes, first by a commission appointed by President Ford and, in 1976, by the celebrated Senate Select Committee chaired by Frank Church.

[snip]

But cataclysmic changes were ahead, and their harbinger was President Jimmy Carter’s acquiescence in the 1978 Foreign Intelligence Surveillance Act (FISA). Here, for the first time, Congress and the courts undertook to regulate the gathering of national intelligence, particularly by electronic eavesdropping, against agents of hostile foreign powers. In the Nixonian afterclap, it was adjudged that the executive could not be trusted unilaterally to wield this power, which might secretly be used against political opponents.

.... Henceforth, the executive branch would not be allowed to use whatever tactics it, as the branch with the most expertise and information, determined were necessary to protect the nation. Rather, it would be compelled to go to a federal FISA court newly created for the purpose, and, as with the procedure for criminal wiretaps, it would need to establish probable cause that the target was an agent of a foreign power. Electronic surveillance would be permitted only if the judges approved.

The impact on intelligence collection was serious. Previously, it would have been laughable to suggest that foreign enemy operatives had a right to conduct their perfidies in privacy—the Fourth Amendment prohibits only "unreasonable" searches, and there is nothing unreasonable about searching or recording people who threaten national security. (The federal courts have often recognized that the Constitution is not a suicide pact.) Now, such operatives became the beneficiaries of precisely such protection. Placing so severe a roadblock in the way of a crucial investigative technique necessarily meant both that the technique would be used less frequently (thereby reducing the quantity and quality of valuable intelligence) and that investigative resources would have to be diverted from intelligence-collection to the rigors of compliance with judicial procedures (which are cumbersome).

This was only the start of the debacle. Courts and the organized defense bar soon began to ply the FISA statute with hypothetical governmental abuses. What if, they worried, a national-security wiretap yielded evidence of an ordinary crime—not an unlikely event, given that terrorists tend to commit lots of ordinary crimes, including money laundering, identity fraud, etc. This was no problem under FISA as written: intelligence agents could simply pass the information to agents of the criminal law, who could then use the damning conversations in court. But what if such law-enforcement agents, for their part, were to try to use FISA as a pretext to investigate crimes for which they themselves lacked probable cause to secure a regular criminal wiretap?

...Gradually, courts rewrote FISA, grafting onto it a so-called "primary purpose" test requiring the government to establish not only probable cause that it was targeting operatives of a foreign power but also that its real reason for seeking surveillance was counterintelligence, not criminal prosecution.

As one would expect, this created among many prosecutors a grave apprehension about "the appearance of impropriety"—a hidebound concept governing lawyer ethics that is perfectly nonsensical in the life-and-death context of national security.
----------endquote-----------

Another guy who agrees with the above is Richard Clarke.

Bush supposedly became obsessed about Iraq for personal reasons: either a quasi-Oedipal obsession with cleaning up a mess his father left behind, or to avenge dad's attempted assassination. To what extent does Bush's thinking overlap that of the PNAC? Does anyone know? Clearly, Bush is getting his information from them, but does he share their overarching ambition and world-view? I have yet to read anything that clearly delineates the degree of complexity in Bush's thinking. Perhaps Bob Woodward will be of assistance here.

As all good Bayesians know, if your prior is set at 100 percent, no amount of posterior evidence will ever make you change your mind.

Quoting Andrew McCarthy's article (referenced by Patrick) in "Commentary": "In short, I am proposing that the CIA be permitted to work in the United States against those who have been colorably associated with foreign powers, including terrorist groups. A number of safeguards can be put in place to assure Americans that we have not authorized Big Brother to run amok. In addition to requiring that the FBI be given notice and periodic updates, we could mandate that the CIA obtain authorization within 72 hours of the start of domestic surveillance.

"My own preference is that this approval come from a responsible executive-branch official rather than from the courts. The FISA model, in my view, violates the principle of separation of powers, gets courts (which have no institutional expertise in, or ready access to, intelligence) into the business of micro-managing national security, discourages agents from pursuing investigations essential to public welfare, and confers upon enemy operatives benefits they should not have."

A responsible executive official such as those in the Nixon Administration? Whose excesses --as McCarthy himself admits earlier -- were responsible for the creation of FISA in the first place?

As for Patrick favorably quoting Richard Clarke on this subject: it's interesting to have evidence that he thinks that Clarke is NOT just out to get the Bushites and extol the Democrats at all cost. It rather spoils his argument against Clarke on these grounds elsewhere, though.

I see I'm not alone in noticing that little peculiarity in McCarthy's reasoning -- along with his peculiarites in other pronouncements. Quoting one of Dan Drezner's pseudonymous contributors, "TexasToast":

"McCarthy’s suggestions amount to:

"1.Let the CIA spy domestically with two safeguards (a) Notice and updates to FBI and (b) 72 hour authorization before spying. He suggests that this 72 hour authorization comes from a 'responsible executive branch official' and not a court;

"2. Continue current CIA/FBI cooperation BUT (a) put the CIA in the lead and the FBI in support and (b) eliminate constitutional protections for 'enemy combatants'.

In sum, he is asking us to place all our trust in a 'responsible executive branch official' with respect to domestic spying, unencumbered with constitutional niceties like due process. One question: Can any of us agree on who this 'responsible executive branch official' should be?"

John Mitchell, possibly?

McCarthy three months ago on the desirability of giving the President unlimited powers by himself to name any American as an "enemy combatant" ( http://www.nationalreview.com/comment/mccarthy200312190923.asp ) :

"Concerns about detention of enemy combatants are not persuasive, but neither are they frivolous. There is no end in sight for the war on terror, which means there is in theory no set end date for release of al Qaeda fighters from detention — just as the American people have no set end date when their anxiety over the possibility of another September 11 might ebb. But there is no justification at this point to inflate the dimensions of Padilla's plight. We are not in a mere technical state of war; we are in a real, live shooting war. There is no rational fear here that the president is rounding up political enemies or suspect ethnic classes under the cover of phony hostilities; there are exceedingly few persons being held as unlawful combatants, and there is a reasoned basis for each of those detentions — indeed, even the Second Circuit majority conceded that Padilla appeared to be a national security threat.

"While it is, moreover, a foreign concept to many federal judges today, it bears noting that the president is a coordinate constitutional actor, of equal status to the judicial branch. He takes an oath to uphold the Constitution just like judges do. Given that prosecution of war is uniquely a presidential prerogative, why should anyone have more faith in the courts than the president to decide who the combatants are and what must be done to neutralize them?"
_______________________

"...No rational fear here that the president is rounding up political enemies or suspect ethnic classes under the cover of phony hostilities" -- yet. Now lean back and consider what a president with Nixon's ethics would have done using this power in this situation, if (as McCarthy recommends) he had had it entirely within his own hands.

The "shooting war" against terrorism, of couse, will never, ever end. Every Moslem could disappear in a puff of smoke overnight and the threat of megaterrorism would continue to exist and always will from now on, thanks to the wonders of modern technology. If we have to construct new legal mechanisms to try to minimize the terror threat without blowing our own democratic rights to kingdom come in the process, we had damn well better not make the president the sole judge and jury.

You says, "I'm sick of all this talk about GWB planning Iraq immediately upon taking his oath."

Fine. Perhaps you'd prefer to talk about how he lied and lied and lied to get the country to follow him.

_____________________

Jon says, "Instead, the root cause of the American failure on 9/11 was psychological. That is, the American national security establishment simply could not absorb, process, and filter data regarding threats so fundamentally at odds with its post-Cold War mind set and conceptual framework."

Another name for this is hubris.

_____________________

dennisS, you are correct. Even if one credits Bush with good intentions and good staff (which is abundantly at odds with the facts), any transition from one party to another involves substantial disruption of the functioning of government.

_____________________

Patrick Sullivan in his rush to assign blame on ideological grounds naturally ignores the obvious point that the reason there was a 9/11 was (a) that there were extremists who had been paid and armed by the US and its allies and (b) airline security was abysmal thanks to the corruption of government by financial interests.

Nothing in criminal law prevented the searching of Moussaoui's computer; Ashcroft decided that on his own. And that computer is the *only* point at which FISA etc. intersected the case pre-9/11. Of course, if one favors a police state as apparently does Mr. Sullivan, one could prevent all criminal acts. But who would want to pay such a price.

"As all good Bayesians know, if your prior is set at 100 percent, no amount of posterior evidence will ever make you change your mind."

Very well put.

Layer on top of any proposed FISA changes designed to make domestic spying easier the possible changes needed to address another purported deficiency. That is, to share intelligence more widely with foreign agencies. Apparently one of the problems limiting our ability to thwart terrorists is the so called "two-party" limitation which prevents, for example, American-derived intelligence that is shared with Britain from being forwarded by the Brits to the Spaniards. Imgaine run-amok domestic spies trading data on you with even more run-amok foreign spies.

I'm not against tweaking the system and I don't fear world government but some people in their rush to find anything that might shift the blame from the current bumblers to some group from the past, whether Clinton or Frank Church, aren't thinking this thing all the way through.

It wasn't about the WMD. If it was, we'd be pushing Iran, N. Korea and Pakistan (to pick three) much harder than we are.

It wasn't about freeing the Iraqi people. The US has generally been reticent about getting involved in (much less *starting*) wars for the sake of bringing democracy to people who don't generally look like us.

It wasn't about terrorism. There are countries who are more supportive of terrorists who threaten the US than Iraq ever was. Let's, just for the sake of argument, put Saudi Arabia at the top of that list.

Is it about ideology? Yeah, I think it's about the ideology. Fine thing to use to start a "war."

We live in a republic, with a written constituion. The principal purpose for writing down a constitution is so that no one can, at some later date, claim that one thing meant something else.

Under our constitution only the Congress can declare war. Period. Not the executive branch or any other branch of the government. This is one of the basic rules of the game.

We are presently in one helluva mess in the Middle East. Our standing among nations is at its lowest nadir.

One the one hand, we claim that we are about removing weapons of mass destruction, while our ally, Israel, is the only known holder of those weapons (and the means to deliver them.)

Should we declare war against Israel? What's good for the goose is good for the gander, isn't it?

So, in our search for WMD's, we have invaded a country that could not have possibly have had them (owing to 10 years of overflights, intrusive inspections, and sanctions of every sort.)

The people of that invaded country look at this discrepancy and say, "Hey! You people are a bunch of hypocrites!" and they are right.

In the meantime, we have killed or maimed thousands of their people, and we expect them to be our allies? Somebody's smoking something illegal here.

We could never have gotten into this predicament if there had been a formal declaration of war beforehand, just like it says in the Constitution, that Congress has the power to declare war--NOT the president. We are not a monarchy.

Given what we know now (and what some of us have known for some time), it is time for the Congress to begin impeachment proceedings against George W. Bush, who, as president, usurped the powers granted him by the constitution; who by presenting false testimony before the Congress to gain approval for military action against Iraq, has violated his oath of office.

The constitution provides for the impeachment, and removal from office, of any official who violates the Constitution.

Those are the rules by which we all play this game. If you foul out, then you're gone,

GWB has fouled out, and should be gone.

James Hogan

"[I]t would have been laughable to suggest that foreign enemy operatives had a right to conduct their perfidies in privacy—the Fourth Amendment prohibits only "unreasonable" searches, and there is nothing unreasonable about searching or recording people who threaten national security . . ."

Patrick's analysis, of course, begs the question. While there is nothing "unreasonable" about searching or recording foriegn enemy operatives, the purpose of FISA is to ensure that the government confines such exercise of its powers to foriegn enemy operatives. FISA is an example of the kind of "checks and balances" this country traditionally employs to constrain government abuses of power.

Remember, the government wiretapped Martin Luther King essentially on a claim that he threatened national security. Patrick seems to think that was a good idea . . .

" Patrick's analysis, of course, begs the question. While there is nothing 'unreasonable' about searching or recording foriegn enemy operatives, the purpose of FISA is to ensure that the government confines such exercise of its powers to foriegn enemy operatives. FISA is an example of the kind of 'checks and balances' this country traditionally employs to constrain government abuses of power. "

Reality check: it was FISA, and the hostility of the FISA Court, that DID block the search of Moussaoui's computer. The computer with Mohammed Atta's phone number. No amount of self-congratulatory rhetoric about police state tactics makes this go away.

The price we paid for Frank Church-Otis Pike-Anthony Lewis-John Kerry-70s activism was, 9-11. If the usual suspects think that 3,000 dead Americans is a price worth paying, fine. Make your case.

I'm not going to enter into the broader discussion of FISA, but really, Patrick, use google before you make assertions like you did at 7:31 AM.

First, the FBI chose not to go to the FISA court. According to congressional hearings in 2002, this was because the FBI attorneys MISUNDERSTOOD the law, and for no other reason.

Second, as was also established in 2002 congressional testimony, even had the FBI misunderstanding of the law been correct, the "cumbersome" FBI computer search procedures prevented investigators from tying together relevant information that would have been sufficient under the FBI's misunderstanding.

I look forward to Patrick's explanation of how a misunderstanding of the law and inadequate, outdated computer systems = the hostility of the FISA court. I'm sure it will be well worth reading.

Patrick Sulliban states that, "Reality check: it was FISA, and the hostility of the FISA Court, that DID block the search of Moussaoui's computer. "

Sorry, Mr. Sullivan. You're simply misinformed.

As indicated in the following article, reprinted from the Washington Post, the FBI declined to approach FISA over Moussaoui. http://www.commondreams.org/headlines02/0823-07.htm

In fact, it subsequently came out that Ashcroft himself intervened to prevent the search. It's also fairly well-established that Ashcroft's Justice Dept. has abused its powers and lied.

But the above article is sufficient to show you don't know what you're talking about. I must admit, though, that the Churchillian stubbornness with which you cling to ignorance is extraordinary. Not admirable, not desirable, but extraordinary.

Patrick Sulliban states that, "Reality check: it was FISA, and the hostility of the FISA Court, that DID block the search of Moussaoui's computer. "

More reality checks. The FISA court has granted these searches in every instance save one. Which was sometime after September 11.

The CIA and FBI have had problems when they have been misused, or misdirected, by the executive. If you think about the instances. For instance spying and dirty tricks against American citizens under the Nixon administration, arms for hostages under the Reagan administration, they were incredibly lame brained projects that any wider oversight would have prevented. Not just because they were evil but because they were lame brained.

Patrick Sullivan follows a certain methodology. Score points by misdirection, or use of selective quaotes and hope what he refers to (insultingly) as the usual suspects, don't know how to challenge him. In this instance he makes it appear that he knows what FISA is when he obviuously hasn't a clue. In another instance in an earlier thread he claimed that Clarke lied when he said during a briefing that Condi Rice was confused about al Qaeda. His proof was Condi Rice had mentioned _bin Laden_ on a Detroit radio show. It turns out Clarke has responded to this criticism by pointing out that the Bush team aware of bin Laden, but viewed him as the head of a criminal gang. They did not understand that he headed a terrorist network called al Qaeda that nuymered in the thousands, was well financed, and active throughout the world.

Too perfect! Someone objects to my characterization of the "hostility" of the FISA Court by citing a source that reads:

"The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday."

And that's AFTER 9-11!

Let's see who understands FISA, here's FBI Director Robert Mueller testifying in 2002:

http://www.washingtonpost.com/wp-srv/politics/transcripts/fbitestimony_060602.html

----------quote----------
HATCH: How many of these approximately 20 terrorists that we have been very concerned about participated in the September matter? How many of those could you have gotten a warrant?

MUELLER: Well, prior to September 11 the 19 or the 20 hijackers, it would have been very difficult, because we had--in looking at it, trying to go back we had very little information as to any one of the individuals being associated with...

HATCH: Foreign power.

MUELLER: ... a particular terrorist group.

One of the issues in the Moussaoui set of circumstances was whether or not the evidence was sufficient to show that Mr. Moussaoui was associated with any particular terrorist group. If you talk to the agents--and I know we've had Ken Williams and other agents up briefing the Congress--I believe the agents will tell you that one of the problems they have in this area, which we believe Congress ought to look at, is the requirement that we tie a particular terrorist to a recognized terrorist group.

HATCH: Or a foreign power.

MUELLER: Or a foreign power--agent of a foreign power.

HATCH: In fact, you probably would have had a difficult time showing that any of them were agents of a foreign power.

MUELLER: A terrorist group, a defined--and it's a loose definition--a terrorist group has been defined as an agent of a foreign power.

Our problem comes in trying to show that a particular individual is connected to a specific, defined--in a variety of ways--terrorist group. I mean, once we get a connection with Al Qaeda, for instance, even though it is not a foreign power, Al Qaeda is sufficiently distinct group so that we can get the FISA that we need.

But we have problems where you have a lone wolf, for instance, who may be out there who we think is a threat, but we have difficulty tying to any particular defined terrorist group.
----------endquote----------

And all they had on Moussaoui was that he was overstaying his visa. That's why FBI headquarters refused to file a FISA application. They had been severely criticized by the FISA court for misleading it over the "probable cause" of an agent of a foreign power.

Prior to FISA being enacted, the Attorney General could simply have ordered it done. Those are the facts, fellas. Whether you like them or not.

Another of the country's finest legal minds agreed with me (June 8, 2002):

--------quote----------
Take the Moussaoui case. The main reason his computer was not searched was the stringency of the Foreign Intelligence Surveillance Act of 1978. It imposed, and still imposes, so substantial a burden of proof to obtain a
warrant for a search or wiretap that all the clues the FBI had before September 11 may well have fallen short.

....French intelligence had said he was a fundamentalist with extremist political beliefs who had attended a radical mosque in London,
had been to Pakistan and perhaps Afghanistan, and had recruited young men to fight in Chechnya. He had expressed approval of Islamic terrorism to a
traveling companion. ....

The most relevant portion of FISA authorizes a search (or a wiretap) of a suspected foreign terrorist only if there is "probable cause" to
believe that he or she is an "agent of a foreign power," defined to include a foreign national who is "a member" of "a group engaged in international terrorism or activities in preparation therefor." Evidence of terrorist intent alone is not enough; "membership" in some particular international terrorist
"group" must be shown.

The now-famous Rowley argued passionately in her 13-page, May 21 letter to FBI Director Robert S. Mueller III that the Moussaoui evidence had
"certainly established" all this. Officials at FBI headquarters disagree. And they, unlike Rowley, have the perspective that comes from
regular dealings with the secret court that handles applications for FISA warrants. (Rowley also accuses headquarters officials of being unhelpful and obstructionist. Perhaps they were. But that doesn't make her right on
the legal issue.) Some FISA experts outside government say that probable cause was lacking. Another, Washington lawyer Lawrence Robbins, says that if the above-listed evidence was all the FBI had, "it's not a slam dunk for either side."

To submit a warrant application, the attorney general would have had to certify personally that the FBI had probable cause. The conventional
wisdom that the FBI's refusal to ask the attorney general to do that reflects a dysfunctional, risk-averse culture should lead us to wonder how
the culture got that way.

Among the reasons: The FBI had recently (and unfairly) been savaged for supposed racial profiling in its Wen Ho Lee investigation, including its unsuccessful efforts to persuade the Justice Department to seek a FISA
warrant. In addition, a well-regarded FBI supervisor (Michael Resnick) had seen his career blighted in the fall of 2000 when the FISA court had barred him from submitting any more warrant applications and had read the riot act to then-Attorney General Janet Reno about perceived improprieties in Resnick's past submissions. The details are murky. But whatever Resnick did was apparently motivated only by a desire to thwart terrorism. Had you been his successor at FBI headquarters, how eager would you have been to
go forward less than a year later with a legally shaky warrant application? And to risk getting trashed in the media and Congress as a
racial profiler?

The bottom line is that if you think that Moussaoui's computer should have been searched before September 11-and want to be sure that the next Moussaoui's computer is searched-fixing the FBI won't do the trick. We will also need to fix the law.

Stuart Taylor Jr.

National Journal
------------endquote----

This is too perfect - Patrick Sullivan at his finest!

Having heard Mueller's testimony, the congressional committee concluded, nonetheless, that the FBI misunderstood the law.

But Mueller must be right, because otherwise, maybe Frank Church wasn't really responsible for 9/11.

As for Patrick's other two cites, let's see: a court, after 9/11, notes that the law had been abused a number of times, and Patrick makes the assumption that the problem is the hostility of the court.

And as for Stuart "the details are murky" Taylor, i'd take his opinion (just as i'd take patrick's opinion) seriously if the court had actually rejected an application to search the computer. It didn't.

Shorter Patrick Sullivan: I must be right, because George Bush is beyond criticism.

Shorter Howard: I'll take the opinion of the Joint Inquiry of Graham and Gross over the opinion of Sullivan 8 days a week.

The law may well be flawed: i'm no expert. But the law isn't why we didn't stop 9/11, and Frank Church isn't the cause of that failure. What nonsense.

" The law may well be flawed: i'm no expert. But the law isn't why we didn't stop 9/11, and Frank Church isn't the cause of that failure. What nonsense."

Simple facts: They HAD TO apply for a FISA warrant to search Moussaoui's computer. FISA was the result of the Church and Pike committee's work.

They DID NOT apply for a FISA warrant because they determined they didn't have the requisite probable cause.

Conclusion: FISA prevented the search, which prior to FISA's enactment could have been done on the Attorney General's say so.

Who should I take seriously, Howard:

"And as for Stuart "the details are murky" Taylor, i'd take his opinion (just as i'd take patrick's opinion) seriously if the court had actually rejected an application to search the computer. It didn't."

Or Stuart Taylor:

" The FBI had recently (and unfairly) been savaged for supposed racial profiling in its Wen Ho Lee investigation, including its unsuccessful efforts to persuade the Justice Department to seek a FISA warrant. In addition, a well-regarded FBI supervisor (Michael Resnick) had seen his career blighted in the fall of 2000 when the FISA court had barred him from submitting any more warrant applications and had read the riot act to then-Attorney General Janet Reno about perceived improprieties in Resnick's past submissions. The details are murky. But whatever Resnick did was apparently motivated only by a desire to thwart terrorism. Had you been his successor at FBI headquarters, how eager would you have been to
go forward less than a year later with a legally shaky warrant application?"

Boy, this is reallllly a toughie.

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