In an article in the January 2 issue of The Weekly Standard, Gary Schmitt, a resident scholar and director at the American Enterprise Institute, defended President Bush's decision to authorize domestic wiretapping without obtaining court orders required by the Foreign Intelligence Surveillance Act (FISA) by citing two “known instances in which FISA's 'probable cause' standard prevented the government from getting warrants”: the investigations of Al Qaeda operative Zacarias Moussaoui and then-suspected Chinese spy Wen Ho Lee. While Schmitt suggested that the failure to obtain warrants in both cases was the result of FISA's overly stringent probable-cause standard, formal reviews of these cases determined that it was the FBI and the Department of Justice's (DOJ) misinterpretation of this standard that prevented the FBI from acquiring the warrants in question.

Further, Schmitt claimed that there is “irony” in “so many liberals ... now defending FISA.” But, he did not explain what he suggested the inconsistency was in having criticized FISA as a “rubber stamp” and now criticizing Bush for flouting even its lax requirements.

In his article, Schmitt claimed that the FISA standard for granting warrants requires such a high degree of proof regarding the target's connections to terrorist or espionage activities that the process “is less about collecting intelligence than confirming intelligence”:

Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the “facts and circumstances relied upon ... to justify [the attorney general's] belief that the target is an agent of a foreign power” or “engages ... in international terrorism.” And the FISA judges can only grant the warrant when “there is probable cause to believe that the target” is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence.

Schmitt then cited the Moussaoui case as an example of how FISA's purportedly stringent standard resulted in the government's “inability to aggressively pursue suspected foreign agents on U.S. soil”:

This shouldn't be news. The inability of the FBI to aggressively pursue suspected foreign agents on U.S. soil was well aired in the 9/11 post--mortems, especially the notorious case of the “20th hijacker,” French Moroccan Zacarias Moussaoui. His laptop was in the possession of FBI agents in Minneapolis in August 2001 but, for want of a warrant, was not searched before 9/11.

Though much of the court's workings are classified, there are known instances in which FISA's “probable cause” standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified.

Schmitt suggested that the “want of a warrant” in the Moussaoui case was the result of the government's failure to meet FISA's probable-cause standard. In fact, as Media Matters for America noted in response to Schmitt's earlier use of this example -- in a December 20 Washington Post op-ed he co-authored with Weekly Standard editor William Kristol -- the government's failure lay, according to a bipartisan Senate report, in self-imposing overly stringent requirements for establishing probable cause. That Senate Judiciary Committee report, released in February 2003, found that the FBI attorneys who concluded there was insufficient evidence to request a FISA warrant for Moussaoui's laptop had employed an “unnecessarily high standard” for probable cause -- one that exceeded the legal requirements set by FISA. The report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), concluded that there appeared “to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application.”

Former FBI agent Coleen Rowley recently reiterated this point in the full version of the December 24 letter that was published by the Post rebutting Kristol and Schmitt's December 20 op-ed:

The bottom line is that THE FISA LAW ITSELF WAS NOT THE REASON THE FBI FAILED TO INSPECT MOUSSAOUI'S PERSONAL EFFECTS AND COMPUTER FILES. Rather, the faulty interpretations and failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation. [emphasis Rowley's]

In his Weekly Standard article, Schmitt went on to cite the investigation of nuclear scientist Wen Ho Lee as another instance in which FISA “prevented the government from getting warrants”:

Notably, there was the case of Wen Ho Lee, the Chinese--American scientist who worked at the Los Alamos nuclear weapons lab. Lee downloaded nuclear codes and databases from the lab's secure computers. “In the wrong hands,” his boss noted, such information could “change the global strategic balance.” Despite this, and the fact that Lee had access to a warhead design that had leaked to the Chinese, had visited China in the period when Beijing apparently acquired the data, and had obvious friendly ties to Chinese nuclear scientists, it was judged that a FISA warrant could not be obtained. It didn't matter how grave the damage might be if Lee was actually engaged in espionage; what mattered was the government had no real evidence that Lee was a likely spy.

But as with the Moussaoui case, a subsequent review of the handling of the application in the Lee case determined that the FBI had, in fact, “established probable cause to believe that Wen Ho Lee was an agent of a foreign power” and therefore, subject to surveillance. The Attorney General's Review Team on the Handling of the Los Alamos National Laboratory Investigation was headed by Assistant United States Attorney Randy I. Bellows, then-Senior Litigation Counsel in the Office of the United States Attorney for the Eastern District of Virginia. The "Bellows Report," submitted on May 12, 2000, concluded that the evidence presented by the FBI to the DOJ's Office of Intelligence Policy Review (OIPR) should have resulted in OIPR submitting the application to the FISA court and, ultimately, should have led to the issuance of a FISA warrant:

The final draft FISA application (Draft #3), on its face, established probable cause to believe that Wen Ho Lee was an agent of a foreign power, that is to say, a United States person currently engaged in clandestine intelligence gathering activities for or on behalf of the PRC which activities involved or might involve violations of the criminal laws of the United States [...] Given what the FBI and OIPR knew at the time, it should have resulted in the submission of a FISA application, and the issuance of a FISA order.

The report further stated that OIPR personnel -- much like the FBI attorneys who blocked the Moussaoui application -- had applied “too conservative” an approach in their handling of the Lee application and had insisted “on a bit more [evidence] than the law requires.”