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More of the Same- FISA edition

January 18, 2007

Captain Ed is pretty angry over the Bush administration’s apparent climbdown in bypassing FISA with the Terrorist Surveillance Program.

But is it? The Volokh Conspiracy has a couple of good exploratory posts making the case that the whole program has been approved by FISA blanket style with anticipatory warrants:

  An anticipatory warrant lets the government conduct surveillance when
a specific set of triggering facts occurs. The judge agrees ahead of
time that if those facts occur, probable cause will exist and the
monitoring can occur under the warrant. The idea is that there isn’t
enough time to get a warrant right at that second, so the warrant can
be "pre-approved" by the Judge and used by the government when the
triggering event happens.

  I don’t know if this theory is
right, of course. But it seems to be consistent with the clues in the
DOJ briefing. Why are these orders taking a lot of time to obtain? If
my theory is right, it’s because the triggering facts that amount to
probable cause in a terrorism investigation presumably are complicated.
There are cookie-cutter drug cases, but I gather there aren’t any
cookie-cutter terrorism cases. It probably takes a lot of negotiation
with the FISA court judges to figure out what different sets of facts
they’ll accept as triggering events that satisfy probable cause. Plus,
the Court might have required review every 90 days instead of the
one-year max allowed under FISA because the FISA court judges would
want to know if their trigger is working out in its application.

the mystery legal development that helped make this possible? If my
guesses are on the right track, it’s probably the Supreme Court’s
decision in United States v. Grubbs, which was handed down on March 21, 2006.  The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.

I think the reality of the political situation is that Bush simply has to jettison as many controversial tactics, especially on the domestic front, if he has any hope of succeeding in Iraq. And even then…

Personally, all I care about is that we’re not hanging up the phone when terrorists call. That’s just stupid. So it appears that largely the same activities are going to continue in a matter more palatable to the Democratic Congress. Fine. At least no huge constitutional  showdown was enacted that might have officially severely restricted the President. We may need that yet again in the future.

I think that’s a virtue of our system. Not everything has to be resolved by passing laws. Sometimes the political realities allow our flexible system to expand and contract as needed. How the Bush team managed to get the FISA court to ease up on the 90 day renewal requirements is no doubt an interesting story we won’t get to hear.

3 Comments leave one →
  1. Tim C permalink
    January 18, 2007 6:10 pm


    You wrote:

    “How the Bush team managed to get the FISA court to ease up on the 90 day renewal requirements is no doubt an interesting story we won’t get to hear.”

    I’m not at all sure they did. If I read it right, wouldn’t the Justice dept briefing that you linked to over Volokh Conspiracy actually say specifically that the FISA orders ARE only for 90 days…

    “I really can’t get into the particulars of the orders, but just like any orders from the FISA court, they’re for a period of time. These are orders for 90 days.

    And that this isn’t some blanket agreement to the TSA as a whole:

    I will say that these are not — these orders are not some sort of advisory opinion ruling on the program as a whole.”

    I’ll bet at least slightly more about how this works will come to light. Hopefully enough data to inspire confidence in the American People, but not too much data. Just enough. The FISA judges themselves seem ok with certain basic facts being released.

    But at first glance, I’m with you …glad too that we found a way to quickly listen into possible terrorist calls …but I’d go one step further and and be glad that it appears that this also does preserve “probable cause” and the need for warrants — for the co-equal judiciary branch to check the Executive power…

    And I agree that in the war on terrorists, we need national unity and lowering the heat on a Constitutional crisis is A Good Thing.(TM)

    (For a while anyway. As you and Gonzalez noted, Bush and co still assert that the executive branch has the right to go back to issuing warrantless wiretaps on US citizens should they deem to. Eventually that will have to get sorted out, likely by the Supremes.)

  2. January 18, 2007 8:42 pm

    Hmmm… could there actually be the sweet smell of compromise in the air??? Could it be each side is a little bit unhappy, but not too much so, and the good of the nation is being served?

    I find the “90 days” issue language a bit murky, probably deliberately so. “These orders” are for 90 days… but they are “complex” and “innovative” and the FISA statue according to Volokh has provisions for warrants that can last up to a year. It seems to me that allowing at least some of them to go for more than 90 days is a common-sense thing to do.

    I hope you can hear me on the “constitution is stretchy” idea. Not eveything needs to get set out in stone by the Supreme court. Especially at this early stage in this new kind of War. I think the mere Democratic process in general is also a good check and balance, that is a little more loose and contingent- more adaptable to current situations.

    Funny though that this deal was two years in the making. Would have been nice to know about- could have saved us some time.

  3. January 18, 2007 9:20 pm

    Powerline has some more “informed speculation”
    on the DOJ deal with the FISA court, as well as a reply to Captain Ed’s concerns.

    I hope this is a sign of future compromises that work for the benefit of our saftey- not just for procedure’s sake.

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