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FISA Answer

February 14, 2006

I’m just now realizing the significance of this story from the Washington Post. If a NSA wiretap encountered a call to the US, just head over to the FISA court for a warrant, right? WRONG:

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.

I had to go take a walk away from the computer after reading that. Let it sink in.

We might as well hang up the phone when it calls the US.

Combine this with General Hayden’s remarks at the National Press Club, and you have the receipie for a really stupid beurocratic obstacle for fighting terrorists:

Now, beyond the authorities that I exercised under the standing executive order [Issued in 1981, ed.] , as the war on terror has moved forward, we have aggressively used FISA warrants. The act and the court have provided us with important tools, and we make full use of them. Published numbers show us using the court at record rates, and the results have been outstanding. But the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978. And I don’t think that anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11 or to deal with a lethal enemy who likely already had combatants inside the United States.

I testified in open session to the House Intel Committee in April of the year 2000. At the time, I created some looks of disbelief when I said that if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him. At the time, I was just using this as some of sort of stark hypothetical; 17 months later, this is about life and death.

How is that? FISA, as I have come to understand it, does not concern itself with issues of citizenship. Rather it refers to "United States persons" – people in the US, citizens or resident aliens.

People, this is insanity.

I guess that’s why the headline is now "Spying Necessary, Democrats Say":

Two key Democrats yesterday called the NSA domestic surveillance program necessary for fighting terrorism but questioned whether President Bush had the legal authority to order it done without getting congressional approval.

In other words, if the President orders it, it’s wrong, but if Congress orders it, it’s OK! So this was never a 4th amendment issue. Democrats wanted to paint the President as a Hoover-esque perpetrator of domestic spying, until they realized that most Americans approve of his actions, and now they want to take credit for it instead.

Rep. Jane Harman (Calif.), ranking Democrat on the House Permanent Select Committee on Intelligence, and former Senate majority leader Thomas A. Daschle (S.D.) said Republicans are trying to create a political issue over Democrats’ concern on the constitutional questions raised by the spying program.

I’m sure the Democrats didn’t want to make this a political issue! I’m sure it won’t be for long though:

Harman noted that the House and Senate intelligence committees were briefed last week on domestic wiretapping. "We’re only 36 members total that we’re talking about, and those members should decide whether this program fits within the law, and if it does, which I think it does, we should all declare victory. If it does not, then we should be changing the law or changing the program."

It only seemed like a few days ago that Harry Reid was boasting of "killing the Patriot Act". With it likely to be renewed soon, and hopefully this NSA kerfuffle in the past, I’m sure we’ll "all be winners".

3 Comments leave one →
  1. Rufus T. Flinger (Timmy C) permalink
    February 14, 2006 10:23 am


    Again respectfully I think you missed the point of the Washington Post article:

    The ONLY two FISA judges that were briefed on what the President were doing were so concerned that it was unconsitutional and that it would be overturned by the Supreme court and that this would then taint any legitimate terrorism cases letting terrorists go.

    So they put up as strong a firewall as they could between their unquestionably legal FISA searches, and the questionably legal non-FISA searches the President was having the Executive branch do all on its own.

    They weren’t stopping any legit FISA searches, nor were they “haning up the phone on Bin Laden” and stopping any of the non-Fisa non-checked Presidental seraches…THEY WERE JUST MAKING SURE THE TWO STREAMS DON’T MIX.

    Keep the non-FISA searches non-FISA all the way.

    To my reading, that’s just smart judgeship, protecting FISA-based cases from being tainted, and doesn’t slow down any of the non-FISA actions.

    (It does show however how strongly two out of two FISA judges feel doubt about the Constitutionality of the President’s actions)

    And you seemed incredulous over this:

    You wrote:

    “Two key Democrats yesterday called the NSA domestic surveillance program necessary for fighting terrorism but questioned whether President Bush had the legal authority to order it done without getting congressional approval.”

    In other words, if the President orders it, it’s wrong, but if Congress orders it, it’s OK!

    Close, but more like:

    “If the President orders the breaking of a law, that’s wrong. If the Congress makes a law that is Constitutional that defines Presidental power in spying on citizens, that’s good.”

    And this stance by the DEMS isn’t new. They fully suppport warranted SPYING on us Citizens suspected to have ties to terrorsts….That’s been clear from Day One. And if the FISA system of instant wiretaps and 72 hour retro warrants isn’t enough, Bush should have worked with Congress to make it so.

    FISA was ammended what 5 times since 911? Any one of those times would do.

    Why did Bush — assuming very trustingly that there is an untold reason why an “72-hour retro warrant” isn’t good enough — why didn’t he go to Congress and propose something like this:

    Either I’d like the 72 hour retro-warrants without needing to go to the judicial branch at all at first. We’ll go to them for retroactive blessing, but only after that 72 hour window.

    Any evidience we find, we’ll keep firewalled away from other safe FISA cases, just to be safe that if 72 hours later you don’t bless it. But there we go.

    Or an option giving even more room the to the Pres, he could have gone to the Congress and said:

    We need this, and want you to amend FISA to allow for this. However we’ll do a check every 45 days (as they now do internal to the Exec branch only) but we’ll allow that external check to be done by the Judiciary Branch, the FISA Court.

    This was the road not taken by Bush, the road of “checked” vs. “unchecked Executive Power.”

    So I add this to my list of open quetions*:

    Wouldn’t it have been better for the nation if — assuming Bush needed to in the first place for the sake of argument — do either of these two options or something similiar.

    Something like one of them may be how this crisis all works out eventually in the end.

    George Will was right, this all is one huge unforced error, and as he said this Sunday, “the president chose a sweeping new doctrine that in times of war the Executive branch basically takes over the other two.”

    It was a powwer grab that didn’t need to happen.

    And as Bush has done from the beginning of his War on Terror, when as the President of all of us he should have been uniting us as a nation, he made choices that divided us as a nation. Eroded trust in the government.

    In doing so the President has greatly hurt the war on terror.

    In such a generations long war , we need to be uniting our country and our friends and dividing our enemy.

    Bush has done the opposite.


    * PS. List of other open questions:

    a. Why is 72 hours retro a problem? No good answer except “trust us it is.” that I’ve seen.

    b. Why did Bush lie about “whenever you hear about wiretaps, it requires a warrant” last year? Needless, needless lie. Gonzales only answer: “The President isn’t a lawyer.”

    c. I’ve asked if my summary of the governemnt’s case is a “straw man” or does it cover the basic core of their argument.

  2. Rufus T. Flinger (Timmy C) permalink
    February 14, 2006 11:37 am

    One more comment:

    It does generate heat but very little light to take Democrat’s quotes out of context like Harry Reid and the December “we Killed the Patriot act” comment…

    BTW, the full quote that I can find is “Think about what happened 20 minutes ago in the United States Senate. We killed the Patriot Act.” Now what do you really think he meant by that? Do you think that he was goating over killing the Patriot act…which 20 mins earlier was NOT killed, but was delayed for further debate?

    When you don’t quote things he said before:

    “Along with many of my colleagues, I will continue to work to reauthorize the PATRIOT Act in a way that gives the government needed tools to protect national security while placing sensible checks on these expanded powers.”

    Or after:

    “I am pleased that the Senate has agreed to another 5-week extension of the USA PATRIOT Act as Senate Democrats remain committed to improving and reauthorizing the bill. We stand ready to provide law enforcement with all necessary tools to keep Americans safe from terrorism. “Democrats supported the original Patriot Act that passed in 2001 and continue to support the reauthorization of the Patriot Act now with modest improvements. We must give government the tools it needs to fight the terrorists, but the checks we need to stop it from abusing its powers. “Democrats are committed to protecting Americans from terrorism. We do not want the Patriot Act to expire, and there is no reason that it should.

    Or even Reids responses in the article you quoted supporting the ammendments offered to the Patriot act by the Repulibcans:

    “Senate Democratic Leader Harry Reid called the accord “a step in the right direction.”

    For discussions like the ones SMD is attempting to foster, we’d all be much better served debating and thinking about ACTUAL postions of different politicians, NOT by “straw-man” caricature postions based on sound bites taken out of context.

    And add one more question to my list:

    If the President believes that during war time he can ignore any law he sees fit, why worry about the Patriot Act in the first place? What is the point?

  3. Count Grecula permalink
    February 14, 2006 3:40 pm

    Again Rufus, I don’t think you’re hearing what I’m saying.

    72 hour warrants are worthless if the evidence it’s based on are not allowed. It’s not hard to imagine a situation where the NSA wiretap is the only source of evidence. That wall needs to be knocked down (I thought the Patriot Act had taken care of that…)

    I had been operating out of the assumption that if a NSA wiretap – fully legal, overseas foreign intelligence gathering – happened to find that their subject was calling a US person, that a FISA warrant cold be obtained on this basis. That is apparently not the case. I think that’s “impractical and unreasonable”.

    Also, it’s not for this judge do decide the constitutionality of what she’s doing. That is not the case before her. The procedure she came up with practically on her own was not legislated. That’s not right.

    I answered your “lie” question at Rob’s blog

    I guess the Steel Siezure case was my rambling way of saying the Presiden’t powers are intentionally vauge on this point, subject to the circumstances of each event. Gonzales can and should assert the most power for the President he can – that’s his job and I would expect anyone to do so. However, all they are really doing is asserting that these NSA wiretaps that involve a US person on ONE side do not necessarily need to go through FISA to be legal.

    I stayed up very late last week watching some of the proceedings on C-SPAN. There’s probably a transcript somewhere, but my impression was that Gonzales did not agree with the assertion that the President can do anything he wants. I think it would be more like “the President can do a lot, certainly use these wiretaps in the manner he’s been doing”.

    As for your last question, it’s been repeatedly explained how the President believes himself to be acting in accordance with the law. You repeatedly frame the argument as a Presidential encroachment on congressional power, when there is a good argument that congress is trying to encroach on the President’s power.

    I’m telling you, all of this is going to fade into oblivion with very little changed. Democrats have to look like they’re on the ball, so they throw some sand in the President’s face to impress the base. Fine, that’s politics. But in the end, nothing will have changed except the perception that the President is running over civil liberties against the Democrats wishes. That’s where the division comes from. Nothing will substantially change from the Democrats posturing except more people will be upset and angry at the President while failing to understand that he has indeed effectively prosecuted this war on terror. Do I need to mention that the Patriot Act had gone through a long negotiation process which was agreed upon before Reid and Co. decided to make a public stink about it. Jane Harmon is now basically saying the NSA program is likely to be legal in their eyes. End of issue. Except many more Americans are getting whipped up in fear of George Bush. That’s divisive.

    Personally, I trust the government more after all of this, not so much because of anything Bush has said, but reading things like the General Hayden’s remarks at the National Press Club. What a competent and decent person to be in charge of so powerful a task.

    I think there’s been a weakening of the President and a deference to Congress over my lifetime which seems normal, but is just an ebb and flow in keeping with the times. I would support ANY president pursuing this specific policy.

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