Abuse of FISA

According to the Congressional Quarterly article regarding Rep. Jane Harman, when Justice Department officials wanted to open a new criminal investigation into a sitting member of Congress, they decided not to use normal channels to apply for a warrant, but tried to go through the procedures designated under the FISA law and the secret FISA court. A law and court specifically created to monitor not Americans, but foreigners. This would have required Alberto Gonzalez to state and justify his belief that the target of the wiretap was a foreign power or an agent of a foreign power. Apparently if Porter Goss followed the law, he did certify that the information sought was foreign intelligence information and that the information could not reasonably be obtained by normal investigative techniques. "Agent of a foreign power" means, among other things, someone who knowingly engages in any clandestine intelligence activities. Interestingly, both John Negroponte and Michael Hayden, neither Fourth Amendment zealots, rejected the application to wiretap Harman.

This seems strange at first, but considering that the conversation was originally overheard via a FISA-court approved NSA wiretap, it makes sense. Now consider that the original conversation as reported by CQ directly implicated Alberto Gonzalez and lesser officials, and it looks like the national security officials did not trust the Department of Justice to approve or oversee a normal domestic wiretap. CQ says Goss thought wiretapping Harman was "urgent." However, FISA warrants still need the AG's approval, and - guess what - Gonzalez turned them down.

So now we have a NSA officials who catch a peculiar but not unusual Beltway conversation involving Harman, Pelosi and officials in the Bush DOJ. They and unnamed DOJ attorneys working on national intelligence want to wiretap, but decide not to apply to a federal judge. Instead, perhaps out of habit, using FISA, (this part is unclear) they ask Negroponte, who says no, then Hayden, who turns them down, until finally Porter Goss says yes, only to have it rejected by the now disgraced Gonzalez. Disgruntled and disgusted, after the torture memos are released, they tell their story to CQ, even though they admit no laws were ever really broken.

We should be disturbed by NSA wiretaps being distributed all over Washington, being used in attempt to justify further FISA wiretaps on Americans, including members of Congress in the opposition party, and, when those efforts failed, the contents of the original wiretaps being leaked by rogue officials in order settle inter-agency scores?

Follow up on something Josh Marshall said - wiretapping members of Congress is dangerous territory, but using a *secret* court to do so is extremely dangerous.