WIRETAP JURISDICTION: WHERE IT SHOULD HAVE BEEN ALL ALONG? (UPDATED)
I’m not sure whether this is an huge change in policy or whether the media is spinning it that way, but the controversial NSA intercept program has now been placed under the jurisdiction of the FISA Court:
The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.
More Politics NewsThe Justice Department said it had worked out an “innovative†arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility†to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.
The decision capped 13 months of bruising national debate over the reach of the president’s wartime authorities and his claims of executive power, and it came as the administration faced legal and political hurdles in its effort to continue the surveillance program.
The question screaming to be answered is: IF IT IS POSSIBLE TO DO TODAY, WHY DIDN’T THE ADMINISTRATION COME UP WITH THIS “INNOVATIVE” ARRANGEMENT WITH THE FISA COURT FROM THE BEGINNING?
And here is where not knowing the technical details of how the program was carried out - something the media and the left have ignored from the beginning in their rush to claim the program “illegal” - may be the key to understanding why government lawyers were willing to sign off on this program in the first place.
Unless you believe NSA lawyers as well as Justice Department attorneys involved in signing off on the intercept program (many of whom threatened to resign unless changes were made) are in love with authoritarianism and unconstitutional abuses of power, then you have to believe that they found justification under the law and the Constitution to give their imprimatur to the initial program. These lawyers are not Republican flunkies. They are career prosecutors and attorneys as dedicated to the law as any left wing commenter who for more than a year have been offering one horseback opinion after another about the legality of the intercept program.
Despite appearances - that is to say, the way the intercept program was described by the New York Times - it was constantly nagging at me that the lawyers at NSA and Justice who vetted this program (and who apparently had access to details not revealed by the Times or the soothsayers on the left who are so confident about knowing exactly how the program works) had to have satisfied themselves that no one was breaking the law. If it came out later that they signed off on a program knowing full well it was illegal, their careers would be over not to mention they would be showing themselves to be moral cowards.
Orrin Kerr, no flaming Bush supporter or booster of the NSA program:
What’s going on? As with everything about this program, we can’t be sure; we don’t know the facts, so we’re stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process — and both sides were in a mood to be “innovative” — one fairly straightforward alternative would be to use 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.
Kerr speculates that a Supreme Court case decided in March making “Anticipatory Warrants” legal may be the impetus behind this deal.
This story is going to open the door to rehashing the same arguments that each side has been flinging at each other for over a year. And the fact that we are no closer to definitive answers today on the legality of the program than we were a year ago is enormously troubling. The program has been reviewed by the Intelligence Committees of both the House and Senate. The Senate Judiciary Committee held hearings on the program. Even a government civil liberties oversight board has looked into the program.
To date, most Congressmen and Senators who have been briefed about the program - both Republicans and Democrats - have not called for its termination. There have been some who have urged the President to place the program under the auspices of the FISA Court but this is by no means a universal response by Congress. And the oversight board found nothing illegal and indeed, praised the Administration for their concerns over privacy issues.
All of this leads me to believe there is a missing element to this story - one not revealed by the Times in their initial reporting nor subsequent follow ups. The fact that a federal judge with no special knowledge of how the program worked declared it “unconstitutional is no help since her ruling has already been challenged and the government successfully got an injunction imposed to keep the program running. (Note: It is almost universally believed by attorneys that her opinion was so poorly written and incoherent that it will easily be overturned.)
But what could this “missing link” be? Did the Times get the story wrong initially? Not impossible but I’ve reread that story and the subsequent follow-ups and it appears fairly well sourced but, by necessity, incomplete. Did the NSA “eavesdrop” as defined by the law? Was the technical means used to intercept the messages something new and therefore beyond the scope of the FISA Court? Was use made of the Court in ways that have not been publicized?
As Kerr says, we just don’t know. And given all the facts we have at hand, I just don’t know either.
UPDATE
I deliberately didn’t want to explore opinion on this matter prior to writing this post (Kerr’s post caught my eye because his opinion on the intercept program has mirrored my own since the story broke; that it was probably borderline legal but bad news for civil liberties).
There appear to be two schools of thought; one that echoes my bold faced question above and another that sees the FISA Court caving in to the Administration. Ed Morrissey:
It’s not that the program has ended; it obviously will continue. My anger is over the fact that the Bush administration insisted on two points: one, that the FISA court would not cooperate on streamlining the process for warrants on these intercepts, and the second that the Bush administration had the authority to proceed without it. They took everyone along for a big ride, making all sorts of legal arguments about the AUMF and Article II — and now Gonzales has revealed that even they didn’t really believe it.
If they were negotiating with FISA to place the program under their jurisdiction, then they must have agreed with their critics that insisted FISA was a covering authority for such action. And if they’ve spent the better part of two years reaching an accommodation with FISA, why not just tell people what they were doing when the program got exposed? And for toppers, why didn’t they start negotiating with FISA in November 2001 when they started the program?
Ed says that Bush has blown his credibility and, given what I’ve read in the last hour or so, I tend to agree. Morrissey believes that Bush is making this move now because he thinks that the President is trying to cut his losses and keep the program running even though a Democratic Congress would move to terminate it.
Mark Levin is livid:
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?
Marty Lederman has some interesting speculation:
Why didn’t this happen years ago? Might it have something to do with the prospect of a possible big government triple-loss on (i) state secrets privilege; (ii) FISA; and (iii) its article II arguments — a development that DOJ would understandably be eager to avoid?
Curiouser and curiouser . . .
Indeed, the prospects of getting legally hammered, not to mention John Conyers and his impeachment inquiry waiting in the wings, salivating at a chance to go after the President, may have focused the Administration’s efforts to take the fire out of the issue. If so, one wonders what other domestic security measures the Administration will seek to rollback.
The more I read about this decision, the more I realize that my post above is at best, superficial and at worst, an exercise in wishful thinking. The Administration has just admitted that what it had been doing for 5 years was either illegal, unconstitutional, or both. How this will play out over the next several months as Democrats begin sharpening the long knives and begin their investigations in earnest will determine the fate of the President.
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Bush changes course on warrantless spying
The Bush administration said Wednesday that it has agreed to disband a controversial warrantless sur
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I, too, am disturbed at this about face. However, during the Clinton administration, a judge was placed on the FISA court. This judge, it is alleged, is responsible for the great quantity of denial of warrants under the Bush administration. He quit the court. This happened awhile ago, so I do not know if this, too, effects the ability to pursue the terrorists.
Comment by Judith — 1/18/2007 @ 8:40 am
The lack of oversight from the GOP-controlled Congress has come back to bite both the President and the Republican Party on the rump. Rather than the intended hope that they were allowing Bush to assume the tools needed to fight terrorism, it now appears that what they gave him instead was enough rope to hang himself.
And if the Bush admin gave this up without a fight, what is it that they are going to fight to keep?
Comment by William Tanner — 1/18/2007 @ 8:57 am
Well there is notihing there to say that they will not do warrentless wiretapping on foreign nationals. Taking that they have a list of over 100,000 suspected terrorists, the FISA Court will not be issuing that many warrants especially considering that they have issued less than 10,000 over the years that it has been in operation. However, issuing warrents for Americans on that list is probably doable, or even done.
Who knows, maybe they have done all the warrent work over this time and only now are they ready to take over without having to say, ’stop listening’.
What’s next? If there is a problem with listening to communications coming across the border, then I suspect Custons has been violating our rights with warrentless searches as we return to the country. What is needed is courts at every international airport to issue warrents for Customs to search our bags, person, phone, laptop.
Comment by Fred Fry — 1/18/2007 @ 8:57 am
About time!
Comment by gregdn — 1/18/2007 @ 9:19 am
Had the Bush Administration conformed with the existing FISA, there would not be such a brouhaha now. Why on earth could they not get warrants since FISA gives the government 72 hours from the start of the wiretapping to obtain a warrant? In the past very few warrants were ever denied. So what was the problem? I guess the Bush Administration wanted far-reaching blanket warrants and they knew they would not get those. Also, it allowed the Bush Administration to spy on its political opponents… Shades of Nixon.
Whatever it is, the latest development is just a scam as usual. Bush will never renounce his imperial powers.
Comment by Evil Progressive — 1/18/2007 @ 9:50 am
Also, it allowed the Bush Administration to spy on its political opponents…
There’s not one scintilla of evidence for the Administration using NSA to spy on its political opponents. That’s a lie.
If you’re talking about the army counter terror program known as “Talon,” even the ACLU has said it was harmless.
Get your facts right.
Comment by Rick Moran — 1/18/2007 @ 9:53 am
You are wrong on one point. Kerr thought the program was NOT legal, in all probability (he said we don’t have enough facts to know for sure), but that it was probably constitutional.
Comment by steve — 1/18/2007 @ 11:04 am
Steve:
I think you’re right but let me check back to my original posts on the subject.
Comment by Rick Moran — 1/18/2007 @ 11:06 am
The right to be free from warrantless wiretaps is statutory, not Constitutional. If Congress said you couldn’t be searched coming across the border w/o a warrant and the President ordered those searches anyways, he’d be violating the law and your rights under the statute.
That’s exactly what has happened with the warrantless wiretapping.
Comment by jpe — 1/18/2007 @ 11:54 am
Because as long as Congressional oversight was being done by See No, Hear No and Speak No - the Evil Bros - the White House didn’t give a shit whether or not the Foreign Intelligence Surveillance Act of 1978 was being followed or not - in spite of the fcat that under the Act, each warrantless wiretap is a federal felony with a penalty of up to 5 years in prison and a $10,000 fine. Apparently someone pointed out to The Deciderer that 1,000 warrantless wiretaps could = 5,000 years in the slammer and a $10,000,000.00 fine - and the fcat that someone could actualy do jail time finally sank in to even the swamp-filled morass that is George Bush’s brain.
Problem for Bush is violations of law have already taken place - and the statute of limitatitions has not run.
Comment by robert lewis — 1/18/2007 @ 12:23 pm
What’s been the central constitutional project of this administration? From the get-go, they’ve been centered around the expansion of executive power, more or less for its own sake.
Comment by jpe — 1/18/2007 @ 12:30 pm
Sounds to me like Bush is a…wait…wait…a flip flopper.
9 months ago he claimed the Democrats who wanted FISA oversight were aiding the terrorist. Suddenly now it’s ok? What an utter liar and idiot.
Comment by MattM — 1/18/2007 @ 12:30 pm
I would agree that even before 9/11 the Administration sought to expand executive power, feeling (rightly or wrongly) that the pendulum had swung too far away in the aftermath of Watergate. I happen to think they had a point - although I hasten to add that the bull regarding fiddling with signing statements and Professor Yoo’s shocking theories about a “unitary executive” have progressively eroded my support for that point of view.
But power for its own sake? If you mean a deliberate attempt to redress what they saw as an imbalance, I would say you are partly correct. But if you are implying that this was done as part of some kind of grand plan to set up an authoritarian government, I’d have to say no.
I honestly believe that Cheney and Bush believe that future Presidents will thank them. Their expansive view of executive power notwithstanding, there is no doubt that executive power had been curtailed drastically in the 25 years since Watergate - and not always to the advantage of the government or the country.
Comment by Rick Moran — 1/18/2007 @ 12:42 pm
AJ Strata writes:
“If Bush had not received what he wanted, he would not have ‘ended’ the TSP…
“If we want to do something about potential terrorists here in country we need the FIS Court to authorize the search and monitor warrants - otherwise the FBI and other law enforcement agents will not risk their personal freedom (staying out of jail) to run down all these leads. So Bush still needs the FIS Court to cooperate so they will let warrants that allow these potential terrorists in country to be fully investigated and monitored and searched and picked up - if need be.
Bush would have to go to something extreme like suspending Habius Corpus if he wanted to go around the courts. But since he HAS their cooperation in this and he is free now to continue the monitoring and the following up of leads from that monitoring, that is the perfect solution.”
http://strata-sphere.com/blog/index.php/archives/3252
***
“This is a good move. It moots the cases, preventing further revelations about the eavesdropping program (the discovery process would ensure those details got out). At the same time, it gets the program moving on a continuing basis. And, if necessary, there is always the option of issuing another Executive Order allowing for NSA to tip off the FBI or other agencies.” — Left by Harold C. Hutchison on January 18th, 2007
http://tinyurl.com/355b5j
Comment by Nick D. — 1/18/2007 @ 1:11 pm
Interesting discussion.
Couldn’t warrantless wiretapping be considered unreasonable search and therefore be unconstitutional?
Comment by cmh — 1/18/2007 @ 2:47 pm
I’m glad you asked, because this is probably the most important thing to understand about the Bush Administration. Their objection to FISA had absolutely zero to do with the onerous process of going through the FISA court, or their inability to protect Americans in so doing. Rather, the objection was purely about creating a precedent where the president is above the law. This also holds true for the signing statements, abandoning habeus corpus, using torture, and other prime elements of the Bush Doctrine.
This is dangerous for all citizens, regardless of which side of the aisle you’re on. Personally, I wouldn’t want a Democratic president who stands above the law any more than a Republican one. Because the fact is, the reason why our country is arguably great is because we traditionally have held the rule of law over the rule of men. Bush’s radical agenda seeks to end that. He needs to be opposed at every turn.
Comment by Paul — 1/18/2007 @ 3:00 pm
Freedum isnt free. The price of liburty is constant survaylance. Besides, what do you have to hide? If your not a terorest you will be fine, otherwise we get rid of you in some camp where you belong! As long as bush fights this war for vistury any and all sacrafises must be made to inshure securitty. Mcain in 08!
Comment by Carl Gordon — 1/18/2007 @ 3:22 pm
Today’s Washington Post suggested one motivation for the administration to suddenly switch back to using FISA - information gathered under the Administration warrantless searches would be inadmissible in criminal trials. Since the administration has been forced to move towards a more criminal approach to terrorists ( at least those apprehended in US territories) they need to start gathering evidence in a legal manner.
Still, I would like to know why the Administration has screamed so much in the past about being under FISA - did they seriously believe it would impede gathering information or was it for the reasons other suggested - expanding/returning Presidential powers.
Comment by peteathome — 1/18/2007 @ 3:27 pm
Okay, folks - help me out here:
Is this guy like the greatest satirist since Johnathan Swift, or is he really the friggin’ stupidest man alive, e.g., “liburty” - “survaylance” - “terorest” -”vistury” - “sacrafises” - “inshure”? I can’t tell - and that “Mcain in 08″ - that’s priceless!!
Comment by robert lewis — 1/18/2007 @ 4:55 pm
Rick wrote:
“[T]here is no doubt that executive power had been curtailed drastically in the 25 years since Watergate – and not always to the advantage of the government or the country.”
Agreed.
It is the Executive’s constitutional responsibility [duty] to check the powers of the other two branches overreach with such things as the Church Committe & FISA?
**
[T]he struggle between Hamilton and Jefferson was not between bad and good, vice and virtue, or darkness and light, but between responsibility and vigilance, two virtues necessary to sustain republican government…
“In the current debate over presidential powers in the war on terror, Hamilton would come down on the side of those who argue that Congress can pass no law that restricts the president’s inherent constitutional power. He would also reject the idea that a judge has the authority to render the president — the constitutional officer responsible for security — powerless.
But even good institutions are not always enough to ensure safety. Leaders must also possess the will and courage to use them when they believe the situation requires it…” — Mackubin Thomas Owens
Jan. 13, 2006
http://www.nationalreview.com/script/printpage.p?ref=/owens/owens200601131053.asp
Comment by Nick D. — 1/18/2007 @ 4:57 pm
Rick wrote:
That may be true, but I can’t think of a single instance where the country has suffered by limiting executive power. For me, Watergate showed what happens when the president believes he is above the law, and all the legislation that has followed to prevent that from occurring again has been in the interest of maintaining the republic and prevent it from turning into a dictatorship. (Even with this clear and benevolent intent, presidents have still fought tooth and nail for their own slice of dictatorship.)
Again, show me the other side of this. How is curtailing executive power ever been a bad thing?
Comment by Paul — 1/18/2007 @ 6:29 pm
Nick wrote:
While I wouldn’t call him the greatest satirist since Johnathan Swift, I definitely took those remarks as satire. His comments were too perfectly stupid to be real.
Comment by Paul — 1/18/2007 @ 6:31 pm
Bullshit. The president’s job is to faithfully execute his office and to enforce the laws - not to wirte puerile signing statements that claim he is not subject to the laws.
The Framers had full knowledge of the struggle between the Executive (monarchy) and Legislative (Parliament) in England during the 17th century. Indeed, Charles I made claims very similar to those advanced by Addington, Yoo and Gonzales - and parroted by Bush, to whit: the claim to rule by Divine Right and the claim that The King Can Do No Wrong - both positions having been articulated by Bush.
In 1649, Parliament settled this argument once and for all by separating Charles Stuart’s head from his shoulders.
It is ridiculous to propose that having recently dethroned a monarch - the Framers were in any hurry to set another atop a throne. This is why the Legislature has primacy among the three branches of government. The Congress may remove a president. The president has no such reciprocal powers.
What Hamilton thought matters not. As Justice Kennedy put it so succintly at his keynote address to the ABA in August:
.
This means you, Mr . President.
Comment by robert lewis — 1/19/2007 @ 10:09 am
Here is another angle…
Has the GWOT been decided???
One wierd element regarding this conflict is the fact that there would be no signing cerimony aboard a battleship in the enemy’s harbor.
Maybe the Islamofascists have been largely beat back and it is time to back away from ‘war-time’ measures. How many major threat notifications have we dealt with in the last six months? There was the liquid bombing attempt - but that was interrupted. Maybe the global jihad is a spent force - for at least the time being.
What would a decent President - one who had to make tough, grey area, decisions - react like when the threat of global jihad is declining.
Maybe soon even President Bush will be talking about the children and health care or other things innane…
Comment by Boghie — 1/20/2007 @ 12:32 am
Here is another angle…
Has the GWOT been decided???
One weird element regarding this conflict is the fact that there would be no signing ceremony aboard a battleship in the enemy’s harbor.
Maybe the Islamofascists have been largely beaten back and it is time to back away from ‘war-time’ measures. How many major threat notifications have we dealt with in the last six months? There was the liquid bombing attempt - but that was interrupted. Maybe the global jihad is a spent force - for at least the time being. There are even reports of Zarqawi’s replacement demanding (ordering) al-Qaeda in Iraq out of Baghdad. Are the Shiite and Sunni thugs really a threat to the American homeland?
What would a decent President - one who had to make tough, grey area, decisions with crappy intel and short time horizons - do when the threat of global jihad is declining?
Maybe soon even President Bush will be talking about the children and health care or other things inane…
Maybe we have ‘won’!!!
Yippeee!!!
Comment by Boghie — 1/20/2007 @ 12:32 am
“The president’s job is to faithfully execute his office and to enforce the laws…”
I appreciate your vigilance.
However,
Article II, Section I of the U.S. Constitution [Presidential oath of office]:
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The President is, in my view, duty bound to preserve protect and defend the Constitution above all else… he is *not* duty bound to enforce what he might reasonably deem unconstitutional laws that encroach on the Executive’s Power e.g., FISA, the Boland Amendment.
Does such unenforcement carry political/legal risk? Yes indeed.
But, the American People elect their Presidents to lead and make leadership decisions, while retaining (of course) the power to impeach/remove/prosecute any President or government official should there be the reason/will to do so.
(*Cough* Sandy ‘Burglar’ *Cough, Cough*)… pardon me. ;- )
**
“What Hamilton thought matters not.”
Thank you for your opinion.
Comment by Nick D. — 1/20/2007 @ 10:58 am