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The Enemy Within

I"m overdoing it today, but there"s one more point I want to get to (before I turn my attention to the horror-show that is the budget reconciliation bill):

In Murray Waas"s fascinating, extremely complicated story about the connection between the Plame leak and a Cheney-led smear campaign against White House counterterrorism advisor Fran Townsend, which also used Robert Novak, I found this passage particularly interesting:

Libby, Addington, and others also had concerns that as a Justice Department official, [Townsend] had been too slow in invoking the Foreign Intelligence Surveillance Act, the mechanism by which the government seeks court approval for wiretaps and other electronic surveillance of potential terrorists and spies. Townsend, who declined several requests to be interviewed for this article, has said that in refusing the FISA requests, she was only following the law; that she did not want to jeopardize potential prosecutions by allowing wiretaps that would later be thrown out in court; and that the rules for such electronic surveillance were much stricter before September 11.

So perhaps it wasn"t the fast-turnaround FISA court that the hawks in the administration were afraid of, but their own executive branch approval process for getting to the court.

Byron York attempts to legitimize this very argument today in National Review: "People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It"s not so much that the court doesn"t grant them quickly, it"s that it takes a long time to get to the court."..."

The complication, explained in more detail in this profile of Townsend from a year ago mainly has to do with limits on whether intelligence gathered under FISA can be shared with prosecutors, and that some information shared in this way couldn"t be used in court.

But whatever the cause, none of this makes sense. There"s one thing the executive branch certainly has unfettered control over, and that"s their own process for submitting requests. If the president this the process is the bottleneck, streamline it. If the Justice Dept is being too cautious, tell them to take some chances. And if the issue is whether material can be used in court -- we know from the Times that the information obtained through the secret process definitely couldn"t be used in court.

So this suggests the possibility that whoever was making the decisions about the targets of surveillance under this program wanted to keep it secret not only from the FISA court, but perhaps even from people like Townsend, who Novak -- channeling the Cheney office view -- described as an "enemy within."

I"ll let others speculate about why this might be.

Posted by Mark Schmitt on December 19, 2005 | Permalink


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I think it is only a matter of time before impeachment proceeding begin but only time will tell!

Posted by: Ashley Bowers | Dec 20, 2005 3:27:42 AM

I hope not, I love Bush. Finally someone is standing up against the evil in the world...are we forgetting Spet. 11th?

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Posted by: Jason | Dec 28, 2005 8:20:13 AM

Theory 2 ... for what it's worth?
Perhaps they were listening to Reporters and Journalists who were calling various contacts overseas for their information? What are the odds that a judge would OK the wiretaping of a reporters communications?

Posted by: Chuck | Dec 30, 2005 11:24:12 AM

Theory Number 2...
Perhaps it's because they were listening to the comversations between Reports/Jouralists and their oversea's information sources? What judge in his right mind would sign off on the wiretap for a Reporter?

Posted by: Chuck | Dec 30, 2005 11:28:27 AM

Interesting perspective. Wasn't it Townsend that Novak was calling Rove about and Rove was supposed to be so thoroughly prepared for the discussion - to defend her - that he had a ream of talking points on his desk ... of course Dana Priest's piece in WaPo this am throws a whole greater dimension to this.

Posted by: mainsailset | Dec 30, 2005 11:45:18 AM

To acquire a warrant thru FISA is easy and expeditious. FISA was specifically set up to address any need for a warrant in a matter of hours or even if needed sooner FISA empowers the Attorney General -- or his designee -- to start wiretapping immediately without a warrant on the stipulation a retroactive application is filed within 72 hours. It is said that FISA is very lenient toward the government's requests -- only 5 out of over 15,000 applications have been rejected since 1979.

So it is difficult to imagine what if any real hang-up there would be in acquiring a warrant. The guidelines necessitates only "probable cause," a minimal requirement. It is rare the government is ever turned down.

Insofar as questioning whether the information gathered could be shared with prosecutors makes sense if the way the information was gathered was illegal. One judge on the FISA court resigned in protest because he was not sure if the "evidence" was obtained thru illegal wiretaps in order to prove 'probable cause' to meet the requirement for a warrant to do so. Evidently he thought it serious enough to resign his post!

The law states a warrant is required before eavesdropping on American citizens. Bush chose not to follow the law. It appears Bush wanted to utilize data mining -- looking to see "if" any needles are in the haystack -- since FISA would not grant him those powers explains why bush circumvented the law. Nevertheless, he still broke the law -- no one, not the president, not the pope not even bush is above the law.

Posted by: serena1313 | Dec 30, 2005 6:01:37 PM

The enemy within. Huh.

Somehow that reminds me of "the light at the end of the tunnel may be you." (Aerosmith, "Amazing")

But in this case, I believe I know who the "enemy within" really is. Certainly not Fran Townsend.

Posted by: Ralph | Dec 30, 2005 8:31:18 PM

That's a very interesting observation, and it leads me to a very curious thought:

I wonder if there might have been some warrantless surveillance before 9/11.

Posted by: Ducktape | Dec 31, 2005 4:03:16 PM

Or that someone was lying to the President about where the holdup was and the situation got out of hand.

"Uh, uh, the delay is in the FISA court."
"Then don't bother with the FISA court."
"Of course, Mr. President."
"Oh, CRAP!"

Posted by: NotThatMo | Dec 31, 2005 5:13:10 PM

Kremlinology is so difficult sometimes.

November 2000, the FISC holds the meeting to consider the garbage affadavits coming from the FBI. Especially those out of the New York office. Townsend is in with the New York office. Townsend is for tearing down the intelligence/criminal wall. The FISC is not in with Townsend. Townsend is in with deputy AG James Comey. Comey stands up against the program in March 2004 when Ashcroft is in the hospital. Townsend is in with Comey. Ashcroft is for tearing down the wall, no matter what the FISC says. Townsend is not in with Ashcroft.

Posted by: Garrett | Jan 2, 2006 1:35:55 AM