well, here is the woman's own version of events:
4) In one of my peripheral roles on the Moussaoui matter, I answered an e-mail
message on August 22, 2001, from an attorney at the National Security Law Unit
(NSLU). Of course, with (ever important!) 20-20 hindsight, I now wish I had
taken more time and care to compose my response. When asked by NSLU for my
"assessment of (our) chances of getting a criminal warrant to search
Moussaoui's computer", I answered, "Although I think there's a decent chance of
being able to get a judge to sign a criminal search warrant, our USAO seems to
have an even higher standard much of the time, so rather than risk it, I
advised that they should try the other route." Leaked news accounts which said
the Minneapolis Legal Counsel (referring to me) concurred with the FBIHQ that
probable cause was lacking to search Moussaoui's computer are in error. (or
possibly the leak was deliberately skewed in this fashion?) What I meant by
this pithy e-mail response, was that although I thought probable cause existed
("probable cause" meaning that the proposition has to be more likely than not,
or if quantified, a 51% likelihood), I thought our United States Attorney's
Office, (for a lot of reasons including just to play it safe) in regularly
requiring much more than probable cause before approving affidavits, (maybe, if
quantified, 75%-80% probability and sometimes even higher), and depending on
the actual AUSA who would be assigned, might turn us down. As a tactical
choice, I therefore thought it would be better to pursue the "other route" (the
FISA search warrant) first, the reason being that there is a common perception,
which for lack of a better term, I'll call the "smell test" which has arisen
that if the FBI can't do something through straight-up criminal methods, it
will then resort to using less-demanding intelligence methods. Of course this
isn't true, but I think the perception still exists. So, by this line of
reasoning, I was afraid that if we first attempted to go criminal and failed to
convince an AUSA, we wouldn't pass the "smell test" in subsequently seeking a
FISA. I thought our best chances therefore lay in first seeking the FISA. Both
of the factors that influenced my thinking are areas arguably in need of
improvement: requiring an excessively high standard of probable cause in
terrorism cases and getting rid of the "smell test" perception. It could even
be argued that FBI agents, especially in terrorism cases where time is of the
essence, should be allowed to go directly to federal judges to have their
probable cause reviewed for arrests or searches without having to gain the
USAO's approval.4
http://www.time.com/time/covers/1101020603/memo.html
> http://a257.g.akamaitech.net/7/257/2422/24jul20031400/www.gpoaccess.
> gov/serialset/creports/pdf/part3.pdf
> Page 321:
>
> On Wednesday, August 22, the FBI Legat in Paris provided a report
> that
> [ deleted ] started a series of discussions between Minneapolis and
> Headquarters RFU as to whether a specific group of Chechen rebels was
> a "recognized" foreign power, that is, was on the State Department's
> list of terrorist groups and for which the FISA Court had previously
> granted orders.
>
> The RFU agent told Joint Inquiry staff that, based on advice he
> received from the NSLU, he believed that the Chechen rebels were not
> a
> "recognized" foreign power and that, even if Moussaoui were to be
> linked to them, the FBI could not obtain a search order under FISA.
> The RFU agent told the Minneapolis agents that they had to connect
> Moussaoui to al-Qa'ida, which he believed was a "recognized" foreign
> power. ...
>
> Welcome back :)
>
> On 5/15/06, Dana Tierney wrote:
> > actually, no, not really. That's probably the Limbaugh take though.
> She recommended getting a FISA warrant instead -- you know, what Qwest
> asked the NSA for and they decided not to bother? So yes, there was a
> warrant issue. No, it wasn't that she couldn't get one.
> >
> > I think the prior response (names snipped to protect the guilty) was
> well taken. In this day and age I'll take all the privacy I can get
> and think a LOT better of Qwest for insisting on compliance with the
> law.
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