FISA and Wire Taps

rimrocker · Jan 17, 2007

So, looks like something has happened on this front...

Secret Court to Govern Wiretapping Plan

By Dan Eggen
Washington Post Staff Writer
Wednesday, January 17, 2007; 5:04 PM
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/17/AR2007011701256_pf.html

The Justice Department announced today that the National Security Agency's controversial warrantless surveillance program has been placed under the authority of a secret surveillance court, marking an abrupt change in approach by the Bush administration after more than a year of heated debate.

In a letter to the Senate Judiciary Committee, Attorney General Alberto R. Gonzales said that orders issued on Jan. 10 by an unidentified judge puts the NSA program under the authority of the Foreign Intelligence Surveillance Court, a secret panel that oversees most intelligence surveillance in the United States.

Gonzales also wrote that the current NSA program will effectively be abandoned after its current authorization expires in favor of the new approach.

The change marks a dramatic turn of events for the Justice Department, which has strenuously argued for more than a year that the NSA spying program was legal and that the foreign intelligence court was poorly suited to oversee the program, as many lawmakers had advocated.

Following the Sept. 11, 2001, terror attacks, President Bush authorized the NSA to monitor telephone calls and e-mail between the United States and overseas if one party to the communication was believed to be linked to al-Qaeda or related groups.

The program did not require any court oversight, prompting widespread objections from privacy advocates and many legal experts after the program was first revealed in news reports in December 2005. Bush and his aides strongly defended the legality and efficacy of the NSA spying initiative, which they dubbed the "Terrorist Surveillance Program."

In his letter to lawmakers, Gonzales said a judge on the surveillance court issued orders "authorizing the government to target for collection international communications into or out of the United States where there is probable cause to believe" that one of the targets is a member of al-Qaeda or an associated group.

"As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," Gonzales wrote.

Gonzales also said that the administration has been exploring ways to seek approval from the surveillance court for nearly two years, but that "it took considerable time and work to develop" an approach that "would have the speed and agility necessary to protect the nation from al-Qaeda."

Gonzales and other administration officials had previously claimed that the surveillance court was too slow and clumsy to be of any use in administering the NSA spying program. Justice officials also released statistics today showing improvements in the amount of time it takes to obtain warrants from the surveillance court.

Presidential press spokesman Tony Snow insisted to reporters that the move was neither politically motivated, in response to any criticism or tied to any court action.

"No, no, no, no, no. No. No.," Snow said when asked if it was tied to federal court action. "As a matter of fact, it may be interesting to to see how it plays out in federal courts, but no, this is not a response . . . this has been going on for two years."

Pressed by a reporter on why the administration was announcing it today if it was something that had been going on that long, Snow replied: "Because the Foreign Intelligence Surveillance Court does not like to have its business discussed in public . . . Typically, they are properly very protective of things that go before them. And as a result, we don't talk about them."

In a background briefing with reporters, Justice officials declined to provide details about how the new program will work -- including whether the surveillance court has issued a blanket order covering all similar cases or whether it will issue individual orders on a case-by-case basis. Authorities also refused to say how many court orders are involved.

The officials said the new approach will offer the same benefits of the NSA program, along with the advantage of judicial oversight.

"There is no compromise to national security," one of the Justice officials said. "The objectives of the program haven't changed, and the capabilities of the intelligence agency to operate such a program haven't changed as a result of these orders."

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he welcomed the new approach but called on the administration to provide more details about the "contours" of the program.

"The issue has never been whether to monitor suspected terrorists but doing it legally and with proper checks and balances to prevent abuses," Leahy said in a statement. "Providing efficient but meaningful court review is a major step toward addressing those concerns."

Sen. Charles E. Schumer (D-N.Y.) immediately criticized the Bush administration for a lack of debate over how the new arrangement will work.

"This announcement can give little solace to the American people, who believe in the rule of law and ask for adequate judicial review," Schumer said in a statement. "And why it took five years to go to even this secret court is beyond comprehension."
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Glenn Greenwald writes well...

http://glenngreenwald.blogspot.com/

Everything I know about the FISA story is contained in this AP article, which I just read, and in this letter from Attorney General Gonzales to Senators Leahy and Specter. Writing full analytical posts is not something that my put-upon, book-addled brain is going to permit today, so I will rely upon the comment section to learn the answers to these questions:

(1) Why couldn't the new rules simply have been instituted years ago, as part of a newly amended FISA (which the administration requested and obtained from Congress in 2001 and which Congress repeatedly asked to do multiple times both prior and subsequent to revelation of the President's lawbreaking)?

(2) If, as Attorney General Gonzales claims, they were seeking to develop new rules as early as the Spring of 2005 to enable eavesdropping under FISA, why didn't they say so when the controversy arose over their lawbreaking?

(3) For those who claimed that our national security was jeopardized and that The Terrorists were given our state secrets when The New York Times revealed that the President was eavesdropping without warrants, didn't Alberto Gonazles just "give the terrorists our playbook" by telling them how we are eavesdropping, i.e., that we are doing so with warrants?

(4a) Could they possible think that this "concession" (what we call "obeying the law") is going to forestall or preclude Congressional investigations into all of the eavesdropping they have been doing over the last five years without anyone watching?

(4b) And relatedly, is this magnanimous assent to comply with the law supposed to relieve them of the consequence from their lawbreaking?

(4c) And related further, are they now going to tell the Sixth Circuit that there is no reason to bother with figuring out if Judge Diggs Taylor was correct when she ruled that the President violated both the Constitution and the law by eavesdropping on U.S. citizens without the warrants required by law?

UPDATE: In January, 2006, current CIA Director and former NSA director Michael Hayden warned that even discussing eavesdropping issues helps the Terrorists because it reminds them that we eavesdrop:

GEN. HAYDEN: You know, we've had this question asked several times. Public discussion of how we determine al Qaeda intentions, I just -- I can't see how that can do anything but harm the security of the nation. And I know people say, "Oh, they know they're being monitored." Well, you know, they don't always act like they know they're being monitored. But if you want to shove it in their face constantly, it's bound to have an impact.

And so to -- I understand, as the Reverend's? question just raised, you know, there are issues here that the American people are deeply concerned with. But constant revelations and speculation and connecting the dots in ways that I find unimaginable, and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks.

Alberto Gonazles said this repeatedly, too -- that merely by raising the issue of eavesdropping, we remind the Terrorists that we eavesdrop. As a result, the ones who forgot that we eavesdrop won't make the calls that they otherwise would have made to talk about their plots, and we won't know what they're doing and we won't be able to catch the Terrorists. That's how the administration explained how our national security had been so gravely harmed by the Times article that "told" the Terrorists that we were eavesdropping without warrants.

Yet here the administration is -- not just reminding the Terrorists that we eavesdrop but detailing their new eavesdropping procedures in public.

UPDATE II: There is one crucial point (at least) that reveals the core falsity behind the administration's claims today. Contrary to their central point, their complaints about FISA were most assuredly not confined merely to procedural obstacles -- i.e., that the process of obtaining warrants was too slow and cumbersome. They complained as much if not more about the substantive requirement under FISA for obtaining a warrant - i.e, they claimed that the requirement to show "probable cause," rather than mere "reasonable basis" (the standard under their illegal program), meant that they could not do the eavesdropping they needed to do in order to stop The Terrorists. Here is an exchange from Hayden's Press Briefing:

HAYDEN: The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates. . . .

QUESTION: Just to clarify sort of what's been said, from what I've heard you say today and an earlier press conference, the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?

GEN. HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a hand.

Identically, a month earlier, when the scandal first broke, Hayden -- in response to a question asking him to explain why FISA was inadequate -- said:

GENERAL HAYDEN: One, the whole key here is agility. And let me re-trace some grounds I tried to suggest earlier. FISA was built for persistence. FISA was built for long-term coverage against known agents of an enemy power. And the purpose involved in each of those -- in those cases was either for a long-term law enforcement purpose or a long-term intelligence purpose.

This program isn't for that. This is to detect and prevent. And here the key is not so much persistence as it is agility. It's a quicker trigger. It's a subtly softer trigger.

That was supposedly why they had to eavesdrop outside of FISA -- not because warrants took too long to get, but because they did not want to have to show probable cause in order to eavesdrop.

Thus, it would not matter what procedures they changed with the FISA court. The problem they claimed existed with FISA was that it required too stringent a showing in order to obtain a warrant (of course, that excuse for lawbreaking never made sense either, since the Senate wanted to lower the standard of proof required under FISA and the administration refused, but that is another story).

The point here is that there is no way that any new secret streamlined procedures with the FISA court could possibly fix the problems which they claimed inhered in the law and which prevented them from keeping all of us nice and safe, because the supposed problem with FISA was not the procedures but its substance (the President's FISA reversal appears to have rejuvinated my brain temporarilly).

UPDATE III: Via Marty Lederman, here is part of a statement today from new House Intelligence Committee Chair Silvestre Reyes:

This announcement does not end our Committee’s interest in this matter. Until our Committee has the opportunity to review the Court orders and conduct in-depth oversight over this program, I am withholding judgment on whether it is effective and whether it protects the rights of the American people.

Regardless of what the Court Orders say and regardless of what the "new program" provides, we ought to see an emphatic statement that there will still be an investigation into how these powers were used in secret for the past five years, specifically on which Americans they eavesdropped with no oversight. I don't know enough about Reyes to know if he will be as diligent as he should be in that regard (and his statement is slightly vague about his future intentions), but I do know enough about Pat Leahy, his Senate counterpart, to preclude real concern about whether needed investigations will occur.

UPDATE IV: Defense Tech quotes Patrick Keefe as wondering whether this "agreement" includes some sort of retroactive approval by the FISA court for prior eavesdropping. I find that extremely difficult to believe for several reasons (and retroactive approval beyond 72 hours of eavesdropping is, in any event, barred by the statute).

Not-very-coincidentally, Gonzales will be testifying tomorrow before Leahy's Senate Judiciary Committee. The title of the hearing is the pleasing "Oversight of the U.S. Department of Justice." And The Post's Dan Eggen reports that "Justice officials also released statistics today showing improvements in the amount of time it takes to obtain warrants from the surveillance court," though presumably that occurred before implementation of these new procedures, so it is unclear what that proves. Presumably, this will all be much clearer once Gonzales answers some questions tomorrow.

UPDATE V: One is constrained to admit that Mark Levin has a valid point here:

Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?

If you were a Bush follower, and you were told (and, of course, by definition, believed) that the President's violations of FISA were not just legal but critical to our Survival and Ability to Defeat The Terrorists, and then suddenly one day, the administration, once Democrats took over Congress, announced that they could, after all, comply with FISA, wouldn't you feel betrayed, too, as though everything the administration was telling you all along about what is vital for our security was . . . . completely false and insincerely expressed?

For Bush followers who kept insisting that (a) The New York Times "blew the cover" on a vital national security program and (b) our ability to stop The Terrorists would be impeded by compliance with FISA, where does this leave them? If Levin's reaction is any indication, they won't be happy.

UPDATE VI: Like Levin, Captain Ed was a supporter of the administration's warrantless eavesdropping and apparently believed them when they claimed that security required operating outside of FISA. As a result, he seems disillusioned:

This change of policy will surely raise a few eyebrows. One of the arguments the Bush administration made was that it could not reach accommodation with the FISA court on expedited authorizations for wiretaps on international conversations with one point inside the US, on phone numbers already flagged as potentially related to terrorists. It discouraged Congress from drafting legislation mandating a process for such actions, stating that the authorization for the use of military force (AUMF) granted them all of the authorization needed for such surveillance. . . .

On one hand, having this process remain in our counterterrorism arsenal is great news. However, for those of us who supported the White House on this contentious point, the speed in which they reached accommodation with FISA will call into question that early support. By my count, we've had ten entire weeks since the midterms and they've managed to scale a mountain that they claimed was insurmountable for the previous five years.

Perhaps more explanations will be forthcoming. I, for one, will be waiting.

It's worth noting that there are Bush supporters (like Ed) who genuinely believe when the administration says that they have to do X because it is necessary to protect Americans, and they then support X in reliance on those representations (in much the same way that many Americans supported the invasion of Iraq in reliance on the administration's representations).

For those people (as opposed to the Bush followers who support anything the administration does no matter what and cheer on any expansion of power), this is going to be a hard pill to swallow and then digest. There is simply no way to reconcile (at least honorably) the adminsitration's prior insistence that our security depended upon eavesdroppping outside of FISA with their sudden willingness to comply with it (now that, as Ed notes, the Democrats control Congress).

Nothing to celebrate

My specific analysis of the legal and political issues surrounding the FISA story is here, but I want to make one broad point. Having read around the blogosphere and elsewhere, what emerges is that there is no way to discern exactly what this new framework is between the administration and the FISA court because the only evidence describing it is Gonzales' letter, which is quite vague in a number of respects about exactly what has happened.

But ultimately, there are only two options -- (1) the administration is now complying fully and exclusively with FISA when eavesdropping, in which case all of its prior claims that it could not do so and still fight against The Terrorists are false, or (2) the administration has changed its eavesdropping program some, but it is still not fully complying with FISA, in which case nothing of significance has changed (at least on the lawbreaking issues) because the administration is still violating the law.

The FISA court and the administration cannot reach an agreement for proceeding that deviates from the FISA law itself. So it is only one or the other of the two options, neither of which reflect well on the administration.

Having said that, I have to say that I find the celebratory tone that I have seen here and there to be quite odd and unwarranted. There is nothing to celebrate here. We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the King deigns that it should and we then celebrate that he has agreed to comply with the laws we have enacted. Moreover, the administration has been violating the criminal law -- i.e., committing felonies -- for the past five years in how they have been eavesdropping on us.

I know that everyone except for the shrill, partisan hysterics has all implicitly agreed that it's impolite and overheated to talk about the criminality involved here -- "hey, whatever the President did, he had a good faith basis for doing (after all, there are lawyers who say so!) and, anyway, he just did it to protect us" -- but the President has been breaking the criminal law on purpose and systematically because he wanted to.

The fact that he might have decided he should stop -- now that his loyal servants no longer control the Congress, a federal judge already ruled he violated the Constitution and the criminal law, an appellate court was about to hold arguments about that decision, and there might actually be consequences now springing from his behavior -- does not excuse his lawbreaking in the slightest and must not be allowed to shield him or anyone else from accountability.

There is no repentance here, nor (more importantly) is there any rescission of their claimed powers of lawbreaking. Quite the contrary. Gonazles' letter affirms, as one would expect, their belief that they were legally entitled to violate this law. That means (a) that they can violate it again at any future point when they want to, (b) they can violate other laws under the same theories, and (c) whatever other lawbreaking is already occurring as a result of those theories is not going to stop.

This "reversal" merely proves what we already knew -- that there was never any legitimate reason to violate FISA in the first place, and that all of the claims about how they had to in order to stop The Terrorists were complete fiction (claims which, just incidentally, they tried to use to win the last election; if you wanted to make them comply with FISA, it meant that you loved the Terrorists).

But this is the same President and the same administration wielding their same theories of lawbreaking and oozing disregard for any limitations on their power. This seems designed to placate anger and to make everyone believe that our crisis is over. In our gratitude that the President relented, we're all supposed to forgive and forget.

They have been doing this all along. Every time they are about to face consequences for their conduct, they stop doing what they are doing and find another way. When the Supreme Court was about to rule on the legality of their detention of Jose Padilla, they transferred him to a criminal court and finally charged him, then told the court that the questions were "moot." When the Supreme Court in Hamdan ordered them to give Hamdan (a U.S. citizen) a venue to charge him with a crime and prove his guilt, they simply let This Extremely Dangerous Terrorist go free instead of charging him.

This is what they do and how they always operate. They have not conceded anything and they have certainly not done anything which mitigates their lawbreaking -- their crimes -- over the past five years with regard to eavesdropping without warrants.

UPDATE: Or, as a pleasantly (surprisingly) clear-thinking and resolute Chuck Schumer put it, from Salon's Tim Grieve:

Sen. Chuck Schumer takes a significantly different tone in a statement of his own, saying that Bush's decision "flies in the face of the fundamentals of American justice, which, when the balance of power is divided, require that these things should be done with full debate, and with full review." Schumer says the Gonzales announcement "can give little solace to the American people, who believe in the rule of law and ask for adequate judicial review. And why it took five years to go to even this secret court is beyond comprehension."

It sounds like Schumer might have decided to stop listening to the Beltway Democratic geniuses who kept telling them that they have to let the President break all the laws he wants and trample all over Congress otherwise Americans will think they are weak.
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insane man · Jan 17, 2007

(i haven't read those two articles yet so if im going over stuff i should have seen i apologize)

my understanding is they're going back to FISA right? this will i guess allow them to get away with breaking the law for a few years and privacy of many? what happens to those things they have on the record that they got without FISA approval. they can't be admissible etc. are they being destroyed? will hearings still be held?

mc mark · Jan 17, 2007

Gee, and Gonzales testifies before the Senate Judiciary Committee tomorrow.

Imagine that.

Sishir Chang · Jan 17, 2007

This sounds like a step in the right direction and a fair compromise in regard to maintaining Constitutional protections along with judicial oversight and the need to for rapid and clandestine surveillance. I had the feeling a compromise like this would be reached as the Admin's argument justifying the previous unwarranted wiretapping seemed very problematic on several fronts and very likely could've been defeated in court making things even more difficult for the NSA.

I'm curious to see what the opinion is of those who argued strongly in favor of the previous program and that the Executive branch was empowered as Commander and Chief to engage in unwarranted wiretapping think about this new program.

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