FISA Court Tainted by NSA Program?

This article in today's Washington Post reveals that there may have been at least two instances in which warrants issued by the FISA court were tainted by information gained as a result of the NSA surveillance program process, despite the efforts of a senior FISA court judge to ensure that they were not. The article is chock full of information about and incident to the program itself, so it's going to take a little work to deconstruct it. Let's start with the major revelation:

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

Apparently the FISA court had insisted that no warrants that they issued be obtained on the basis of any information gleaned from NSA surveillance. But the process broke down more than once, leading to the suspension of the program by then Attorney General Ashcroft in 2004:

[In early] 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone's calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully "tagged" as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.

According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.

Lamberth and Kollar-Kotelly derived significant comfort from the trust they had in Baker, the government's liaison to the FISA court. He was a stickler-for-rules career lawyer steeped in foreign intelligence law, and had served as deputy director of the office before becoming the chief in 2001.

Baker also had privately expressed hesitation to his bosses about whether the domestic spying program conflicted with the FISA law, a government official said. Justice higher-ups viewed him as suspect, but they also recognized that he had the judges' confidence and kept him in the pivotal position of obtaining warrants to spy on possible terrorists.

In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging system. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know -- and could not alert the court -- if it was seeking FISA warrants for people already spied on, government officials said.

Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete -- or face possible perjury charges.

In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said. Some administration officials explained to Kollar-Kotelly that a low-level Defense Department employee unfamiliar with court disclosure procedures had made a mistake.

Kollar-Kotelly asked Defense Secretary Donald H. Rumsfeld to ensure that wouldn't happen again, government officials said.

In other words, the FISA court was willing to issue warrants for persons who were targets of the NSA program, so long as the warrant was based on information independent of that obtained by the NSA. This would seem to imply that the surveilled person could have come to the attention of authorities as a result of the NSA program, but the NSA's information could not be the basis for a warrant. It's important to note that this protection was not put in place by the administration; it was insisted upon by the presiding judges Lambarth and Kollar-Ketelly, though the administration agreed to the program so that they could continue to obtain warrants through the FISA court. But apparently even this limited proscription could not be followed by the NSA, which failed to inform Baker in at least two instances (though certainly there could have been more) that persons he sought FISA warrants to surveill had already been targeted by the NSA. Baker thought enough of this to complain to the court, and Ashcroft apparently thought enough of this to shut the program down for a time.

There are equally interesting nuggest of information disclosed by the article, including this bit regarding how the FISA court judges felt about some of Attorney General Gonzales' testimony in public hearings last week:

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.

I guess in reading the coverage on the hearings I'd missed this (my apologies), because I'm as puzzled as the FISA court judges are. If "reasonable belief" is the standard by which the NSA could decide who to surveill, and reasonable belief is the same thing as "probable cause", which is constitutionally required for a warrant to be issued (or for a search or seizure to take place without one) then exactly what the hell is the point of the NSA program? To me it's clear that "reasonable belief", or whatever standard they may be using to decide who to spy on at the NSA, cannot possibly be "probable cause" as getting around that language was the entire point of the program. Also:

Several FISA judges said they also remain puzzled by Bush's assertion that the court was not "agile" or "nimble" enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court's actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.

So it would seem that this thing about the 72 hour retro-active warrant approval period isn't just a Democratic talking point if the judges of the FISA court are wondering how it isn't flexible enough.

And then there's this, buried at the end of the article, that also goes to the flexibility and effectiveness of the current warrant system:

In March 2002, the FBI and Pakistani police arrested Abu Zubaida, then the third-ranking al Qaeda operative, in Pakistan. When agents found Zubaida's laptop computer, a senior law enforcement source said, they discovered that the vast majority of people he had been communicating with were being monitored under FISA warrants or international spying efforts. "Finally, we got some comfort" that surveillance efforts were working, said a government official familiar with Zubaida's arrest.

And so the mystery remains. If the NSA program is doing only what General Hayden, President Bush, Attorney General Gonzales and others say it is...then what's the point? As with the war in Iraq, every justification we've heard from this administration to this point is not quite as solid as we're led to believe. So what aren't they telling us? Who are they really listening to and why?