Shostack + Friends Blog Archive


I'll have to check with my manager

If you watch “The Simpsons”, you’ve probably seen “Puberty Boy“, the pimply-faced kid who appears in many episodes in a variety of menial jobs.
Well, it looks like he may be working for the NSA:

Q If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?
ATTORNEY GENERAL GONZALES: That question was asked earlier. We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.
Q And who determined that these targets were al Qaeda? Did you wiretap them?
GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply — and it’s a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States.
Q So a shift supervisor is now making decisions that a FISA judge would normally make? I just want to make sure I understand. Is that what you’re saying?

Source: The White House
Did you catch that? We didn’t try to get the law changed because certain people in Congress told us we’d fail. Oh, and this is no biggie because a shift supervisor plays the role of a federal magistrate. Comedy gold!

7 comments on "I'll have to check with my manager"

  • J says:

    Unless Bill Clinton does it:
    “It is important to understand, that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.” – Jamie Gorelick testifying before the Senate Intelligence Committee on July 14, 1994

  • Unless I greatly mistake the matter, puberty boy as you put it, was the source of the NYT story.
    When the history of this era is written it will show that it was the worker bees of greater Washington who defended the constitution when their leaders, elected and appointed, failed.

  • J says:

    Gorelick’s Wall at work:
    Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI’s attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don’t rise to the level of probable cause under FISA.”
    I thought the mantra of the Liberal was “If it would save just one life, then it is worth doing” I guess when we are talking about saving 3000 American lives it doesn’t count.

  • J says:

    I guess the New York Times failed to mention that the request for FISA warrant for Moussaoui was denied.
    Straight from the 9-11 commission report.
    “Zacarias Moussaoui
    On August 15, 2001, the Minneapolis FBI Field Office initiated an intelligence investigation on Zacarias Moussaoui. As mentioned in chapter 7, he had entered the United States in February 2001, and had begun flight lessons at Airman Flight School in Norman, Oklahoma. He resumed his training at the Pan Am International Flight Academy in Eagan, Minnesota, starting on August 13. He had none of the usual qualifications for flight training on Pan Am’s Boeing 747 flight simulators. He said he did not intend to become a commercial pilot but wanted the training as an “ego boosting thing.” Moussaoui stood out because, with little knowledge of flying, he wanted to learn how to “take off and land” a Boeing 747.90
    The agent in Minneapolis quickly learned that Moussaoui possessed jihadist beliefs. Moreover, Moussaoui had $32,000 in a bank account but did not provide a plausible explanation for this sum of money. He had traveled to Pakistan but became agitated when asked if he had traveled to nearby countries while in Pakistan (Pakistan was the customary route to the training camps in Afghanistan). He planned to receive martial arts training, and intended to purchase a global positioning receiver. The agent also noted that Moussaoui became extremely agitated whenever he was questioned regarding his religious beliefs. The agent concluded that Moussaoui was “an Islamic extremist preparing for some future act in furtherance of radical fundamentalist goals.” He also believed Moussaoui’s plan was related to his flight training.91
    Moussaoui can be seen as an al Qaeda mistake and a missed opportunity. An apparently unreliable operative, he had fallen into the hands of the FBI. As discussed in chapter 7, Moussaoui had been in contact with and received money from Ramzi Binalshibh. If Moussaoui had been connected to al Qaeda, questions should instantly have arisen about a possible al Qaeda plot that involved piloting airliners, a possibility that had never been seriously analyzed by the intelligence community.
    The FBI agent who handled the case in conjunction with the INS representative on the Minneapolis Joint Terrorism Task Force suspected that Moussaoui might be planning to hijack a plane. Minneapolis and FBI headquarters debated whether Moussaoui should be arrested immediately or surveilled to obtain additional information. Because it was not clear whether Moussaoui could be imprisoned, the FBI case agent decided the most important thing was to prevent Moussaoui from obtaining any further training that he could use to carry out a potential attack.92
    As a French national who had overstayed his visa, Moussaoui could be detained immediately. The INS arrested Moussaoui on the immigration violation. A deportation order was signed on August 17, 2001.93
    The agents in Minnesota were concerned that the U.S. Attorney’s Office in Minneapolis would find insufficient probable cause of a crime to obtain a criminal warrant to search Moussaoui’s laptop computer.94 Agents at FBI headquarters believed there was insufficient probable cause. Minneapolis therefore sought a special warrant under the Foreign Intelligence Surveillance Act to conduct the search (we introduced FISA in chapter 3).
    To do so, however, the FBI needed to demonstrate probable cause that Moussaoui was an agent of a foreign power, a demonstration that was not required to obtain a criminal warrant but was a statutory requirement for a FISA warrant.95 The case agent did not have sufficient information to connect Moussaoui to a “foreign power,” so he reached out for help, in the United States and overseas.
    The FBI agent’s August 18 message requested assistance from the FBI legal attaché in Paris. Moussaoui had lived in London, so the Minneapolis agent sought assistance from the legal attaché there as well. By August 24, the Minneapolis agent had also contacted an FBI detailee and a CIA desk officer at the Counterterrorist Center about the case.96
    The FBI legal attaché’s office in Paris first contacted the French government on August 16 or 17, shortly after speaking to the Minneapolis case agent on the telephone. On August 22 and 27, the French provided information that made a connection between Moussaoui and a rebel leader in Chechnya, Ibn al Khattab. This set off a spirited debate between the Minneapolis Field Office, FBI headquarters, and the CIA as to whether the Chechen rebels and Khattab were sufficiently associated with a terrorist organization to constitute a “foreign power” for purposes of the FISA statute. FBI headquarters did not believe this was good enough, and its National Security Law Unit declined to submit a FISA application.97″
    End of quote.
    Straight from the fucking report… people are still treating this as a criminal investigation and are going to get more people killed.

  • J says:

    I stand corrected…..the FISA application was not submitted because it AFTER MUCH DEBATE and HANDWRINGING it was thought not to have met the standard.
    Now are you going to tell me that this is the way to you want the system to work?

  • Chris Walsh says:

    The rank and file contain many good, honorable people. None of them should be in a position to decide who gets a warrantless search. That is the responsibility of the judiciary.
    The USA PATRIOT Act changed the criteria for FISA warrants. Moussaui undoubtedly would have ‘qualified’ after those changes. The record is clear: there have been a handful of rejections of FISA requests post-9/11 and literally thousands of requests.
    In short, your argument that FISA is unlikely to be permitted and thus allows bad guys to go w/out scrutiny is wrong on the facts.

  • j says:

    Ever worked for the federal government? Things don’t change very quickly and apparently even after the Patriot Act, suprise suprise, the process to put together a FISA warrant is still cumbersome and hampers the speed of investigations (as it is intended to) Note that the decision to grant or not to grant is quick, it is putting together the necessary paperwork to present to the judge. Who said this? Why the sainted 9-11 commission said in their report that this problem STILL EXISTS:
    “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.
    “Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow,” the commission said. “Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process.”
    The problem isn’t always the rejections, it is the time needed to put a case together and get a decision.

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