FISA court screws up intelligence collection

LA Times:

A special court that has routinely approved eavesdropping operations has put new restrictions on the ability of U.S. spy agencies to intercept e-mails and telephone calls of suspected terrorists overseas, U.S. officials said Wednesday.

The previously undisclosed ruling by the Foreign Intelligence Surveillance Court has prompted concern among senior intelligence officials and lawmakers that the efforts of U.S. spy agencies to track terrorism suspects might be impaired at a time when analysts have warned that the United States is under heightened risk of attack.

It also has triggered a push in Congress this week to pass temporary legislation that would protect parts of a controversial eavesdropping program launched by the Bush administration after the Sept. 11 attacks.

The administration and Democrats are at odds over how to address the issue, leading to concerns that it might not be resolved before Congress starts its August recess Monday.

This week, congressional leaders have alluded to the recent decision by the court, which was created in 1978 as part of the Foreign Intelligence Surveillance Act.

House Minority Leader John A. Boehner (R-Ohio) said in a television interview Tuesday evening: "There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States."

Senate Intelligence Committee Chairman John D. Rockefeller IV (D-W.Va.) said Wednesday that "recent technical developments" had convinced him that "we must take some immediate but interim step to improve collection of foreign intelligence in a manner that doesn't compromise civil liberties of U.S. citizens."

Neither Rockefeller nor Boehner would elaborate, but U.S. intelligence and congressional officials familiar with the matter said they were referring to the FISA court ruling.

Boehner's remarks suggest that the ruling imposed new restrictions on the National Security Agency's ability to intercept communications that are between people overseas but that "transit" U.S. data networks operated by Internet service providers and telecommunications companies.

But other officials said the ruling's reach was broader, affecting cases "where one end is foreign and you don't know where the other is" — meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.

One official said the issue centered on a ruling in which a FISA court judge rejected a government application for a "basket warrant" — a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.

"One FISA judge approved this, and then a second FISA judge didn't," the official said, speaking on condition of anonymity because the activities of the FISA court are classified.

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This is precisely why the courts should not be involved in the process. To have some judge tell the administration that it cannot intercept enemy communications in time of war is outrageous. The Democrats created this mess and they are scrambling to try to clean it up, but they are unwilling to do it in a way that gets it out of the ridiculous court approval process. Why are judges being put into the position of protecting the privacy of the enemy? People making war against this country have no privacy right period. As Jed Babbin points out this has gone beyond a burden on collecting information and has become an impediment. This is a first class screw up that the Democrats are responsible for and it is making us blind at a time when the enemy is determined to act. It is unconscionable that they would dither over fixing this problem. But they would rather harass the Attorney General than invade the privacy of the people trying to kill us.