Patterico's Pontifications

1/17/2007

Bypassing FISA Court Suddenly Not Necessary for National Security

Filed under: General,Terrorism — Patterico @ 6:02 pm



So it turns out that we didn’t need the authority to bypass the FISA court after all. We’re perfectly safe doing our eavesdropping under the auspices of the FISA court, don’t you know.

And so the unbelievably incompetent opinion by partisan hack Anna Diggs Taylor stands. And the credibility of this Administration appears to take another serious hit.

According to the linked article, when Tony Snow was asked whether the action was tied to federal court proceedings, he replied, in a quote I am not making up:

No, no, no, no, no. No. No.

It reminds me of what the peasants in Monty Python’s Holy Grail said, when asked if they had dressed up a woman to look like a witch:

No. No. No. No. No . . . Yes. Yes, a bit.

Anyway, Snow says they’ve been planning this for over two years. In the meantime, as recently as one year ago, Bush said that his program was “necessary to win this war and to protect the American people.”

And now . . . it’s not.

Everybody buys that, right?

UPDATE: Dafydd ab Hugh says that the FISA Court surrendered to the Administration, not the other way around.

I’m not sure he’s quite right to say that Bush got exactly what he’d wanted. As I recall, the Bush program sought a standard lower than the probable cause standard that the Court appears to have accepted. But he may have a point to the extent that the Court has speeded up its processes, and has left in place the possibility of some blanket monitoring when probable cause exists to believe one side of the conversation is associated with Al Qaeda.

UPDATE x2; But I think Captain Ed makes the better point, which is essentially what I’m saying in this post:

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.

That’s how it looks to me. Which is why I say the Administration’s credibility has taken a big hit — even with many of us conservatives.

43 Responses to “Bypassing FISA Court Suddenly Not Necessary for National Security”

  1. The Bush Administration may not have needed the blessing of the FISA court to make the program legal, but it doesn’t hurt as a buffer between the program and the Democrat majority in Congress.

    Stephen Macklin (68591a)

  2. He’s got to fire the Texans. Seriously (with no offense to our host.) Gonzalez, Hughes, Miers. He needs counselors who are more than just loyal. Who are competent. Who will tell him what he must do instead of what he can do.

    nk (32c481)

  3. NSA Eavesdropping Now Court Approved – Permanently…

    I won’t try to summarize it. Just go read A J’s post. *** More at Stop The ACLU and Captain’s Quarters. I like A J’s take better. Hope he’s right. *** Read Allahpundit’s take here. *** Patterico comments here….

    Bill's Bites (72c8fd)

  4. “Bush said that his program was “necessary to win this war and to protect the American people.”

    What amazes me is that so many on the right actually believed him, supported him, and went to rhetorical war for him over this. Like- getting a frickin’ warrant, a rather fundamental concept in this country since its founding, was suddenly a great threat to national security.

    I think this has been a very shameful episode for the right. Being conservative means that one should be at the forefront of defending the traditions of the country, not rolling over for some politician who comes along and wants to aggrandize power unto himself, using a great tradgedy as cover.

    That Bush has now left the right hanging out there with all them damn words living on in infamy on dem internets, seems like just desserts.

    Tano (04010c)

  5. Ohmigod! We’re all gonna if the courts are involved! Ahhhhhhh!

    jpe (2df7ed)

  6. That comment left out my Powerline tag. Hm.

    jpe (2df7ed)

  7. Warrants are not always necessary. The 4th amendment prohibits ‘unreasonable’ search and seizure. People seem to believe that a warrant is always required. I thought the Pres made a very good argument that exigent circumstances often made a warrant too cumbersome.

    Guess not. Oh, never mind!

    True, Tano, “Bush has now left the right hanging out there with all them damn words living on in infamy…”

    Decisions like this will hurt his credibility than anything he said about WMD in Iraq.

    ManlyDad (d62cf6)

  8. “and the credibility of this administration appears to take another serious hit.”

    the credibility of this administration is underwater. only a torpedo or a depth charge can further damage it now.

    assistant devil's advocate (827970)

  9. Could it be possible that they negotiated a system that bypasses the previous requirements of the court, but gives FISA oversight on the program?

    Barney15e (7f9027)

  10. Hmmm…

    jpe, here is the Powerline link you probably were referring to: http://powerlineblog.com/archives/016522.php

    After reading the WaPo article, the letter in question, and the post at Powerline, it seems harder to explain than water intoxication…

    The details are not known because they are classified. It is unclear whether the surveillance in question has been approved in a “general sense” hence the program essentially goes on as it was. While FISA has said “OK”, does that mean that they will or will not expect specific requests for each target? Was this a way for the administration to get what it wanted without further hassles? Has there been a change of who sits on FISA?

    MD in Philly (3d3f72)

  11. NK,

    The problem is GWB took too many East Texans with him to Washington. He should have stuck with conservative West Texans rather than his Dallas-Houston cohorts.

    DRJ (51a774)

  12. the ‘monty python’ mention is apt; maybe GW should just throw the accused terrorists in the water and fry up the ones that float.

    lbo (f86e7d)

  13. I never bought the argument that it was necessary for national security to bypass the FISA court. I’m happy to see this outcome; it’s basically exactly what I wanted from the day the program was announced: surveillance of people who need to be surveilled, overseen by a competent authority outside the adminsitration.

    aphrael (9e8ccd)

  14. It’s politics as usual…one day you’re for it and the next you’re against it and the next you’re for it again and the next you’re denying that you were for it in the first place. Typical politics. Democrats. Republicans. Independents. It’s all the same once you take away the rhetoric.

    Carl (4b6f17)

  15. The problem with FISA is, if they reject a request, which is fairly rare, they are required to tell the suspect that they reviewed their case, which puts intelligence collectors at risk.

    munsey (085be7)

  16. […] REACTION FROM SOME CONSERVATIVE WEBLOG WRITERS (These are excerpts so please go to links and reach each post in FULL): –Patterico’s Pontifications: So it turns out that we didn’t need the authority to bypass the FISA court after all. We’re perfectly safe doing our eavesdropping under the auspices of the FISA court, don’t you know… And the credibility of this Administration appears to take another serious hit. According to the linked article, when Tony Snow was asked whether the action was tied to federal court proceedings, he replied, in a quote I am not making up: No, no, no, no, no. No. No. […]

    The Moderate Voice » Blog Archive » White House Reverses Course On Warrantless Wiretaps Program (3188ee)

  17. I still think there is more smoke than light.

    Those who support the President’s position see FISA as a slow to respond bureacracy that is not up to real time urgent decision-making, as well as having a history of obstructionism. Protecting the civil rights of US citizens takes a level of caution that is not appropriate for monitoring communications in and out of the country by those known to have connections with terrorists.

    Those against the President’s position likely inherently do not trust/support the president in general and feel that he needs monitoring, and that FISA is not a burdensome process.

    If munsey’s comment is correct, that’s a fact I never heard before that sounds like a legitimate concern. Probably one of many pertinent facts we aren’t aware of. The claim has been that there was info on computer that would have helped prevent 911, had the FBI investigated, but that they assumed on reliable precedent they would not get court approval. As I said, that’s “the claim”, what’s true??

    I think we need a TV talk show hosted by a (kind and honorable) DA to “get to the bottom of things”. No, unfortunately, I don’t have the resources to fund it.

    MD in Philly (3d3f72)

  18. Thanks for the updates and discussion.

    I don’t know if this is one of those d***ed if you do, d***ed if you don’t. I think President Bush wants to get done what he thinks needs to be done, and is less interested in appearances and politics- maybe even to a fault.

    If anyone has received more criticism than the President, it might have been John Ashcroft. AG Gonzales seems noteworthy for his lack of being criticised in the press. Perhaps it was calculated that the admin could get what it wanted in this maneuver and preferred it over the court battles to overturn the atrocious ruling by Ana Diggs Taylor. If that was the case, I wish Tony Snow had said so.

    As it is, it appears that the admin has backed down, a victory for his opponents and discouraging for his supporters. If Snow comes out and says point blank, “It’s the surveillance that is important, to get it done is important. We couldn’t get it done before through FISA because of X, we felt we had the right to do it anyway, and we did it. Since many have been concerned, rather than continue the fight to not involve FISA, we have worked with FISA to continue the kind of surveillance we want and to remove the criticisms.” We could still perhaps disagree, but it would be more understandable. Of course, some would, and will, continue to criticize.

    As far as oversight goes, it is my understanding that members of both Parties in Congress on the appropriate committees were aware and approved of it before it went public, so there was a level of accountability, just not through FISA. Perhaps that was mistaken.

    MD in Philly (3d3f72)

  19. I think the deal with FISA is more about getting it in writing.

    Basically if something is missed because FISA’s rules are not permissive enough or FISA dropped the ball due to a bad ruling or bureacracy, the Administration (whoever it may be at the time) is off the hook.

    I wonder how the FISA judges will feel on the hot seat in front of a Congressional investigation?

    jpm100 (6dd049)

  20. What the basic question alway was is:

    Does Article 2 executive power give the administration (i.e. the President) the authority to collect intelligence against an enemy in a time of war?

    If your answer is “NO” you’re an idiot!

    Dubya (c16726)

  21. Actually, delete the words “…in a time of war.”

    Does the President have the power to surveil the enemy?

    Dubya (c16726)

  22. Dubya, that’s not the question; the question is, does the president have the power to decide who is and who isn’t the enemy? Or is that classification something which is beyond his power?

    aphrael (9e8ccd)

  23. “the ‘monty python’ mention is apt; maybe GW should just throw the accused terrorists in the water and fry up the ones that float.”

    -lbo

    You mean weigh them against a duck, and if the scales balance they’re a terrorist?

    Leviticus (3c2c59)

  24. Go to justoneminute.typepad.com for an intelligent discussion that avoids patterico’s thumbsucking.

    SmokeVanThorn (97d6f6)

  25. Also check out volokh.com.

    SmokeVanThorn (97d6f6)

  26. …does the president have the power to decide who is and who isn’t the enemy? …

    That’s obfuscating offal! There’s no question that al-Queda and those they associate with are the enemy.

    Or does declaring war against the US in 1998 and flying planes into the Trade Center qualify as attempts to curry favor with an ally?

    Dubya (c16726)

  27. Maybe you think that the problem is that we just don’t understand Islamists and that we need to empathize with their pain.

    ,,|,

    Dubya (c16726)

  28. Dubya, the warrant requirement for domestic surveillance does not preclude the government from conducting surveillance. The exec’s right and duty to go after enemies do not conflict with the Fourth Amendment unless he claims the right to do it unilaterally and in complete secrecy.

    The administration’s abandonment of the argument you are voicing is the latest in a long string of lies and irresponsible bluster about the existence, scope, and legality of the program. The argument against granting the exec such poswer has made itself.

    biwah (2dcf66)

  29. Dubya: there is a question, though, about individuals.

    Here is an example of why I want external oversight review. In January of 2004, I spent two weeks in Turkey, and one of the things that I let myself get roped into is going up into someone’s hole-in-the-wall carpet shop for tea.

    Now, imagine that this hole-in-the-wall carpet shop was run by someone who had connections with al Qaeda. Does the fact that I had tea with them make me the enemy, and justify wiretapping my phone calls?

    Who decides that? Is that a decision the executive should be making on its own? Or should there be some sort of oversight of that decision?

    How can you tell an innocent encounter from a not-so-innocent one? It’s not a determination i’m comfortable with executive power making, and neither was Congress; that’s why FISC exists.

    aphrael (e0cdc9)

  30. …requirement for domestic surveillance…

    Again with the BS meme… this is NOT “domestic surveillance” but surveillance on international communications.

    They “abandoned the effort” because they did not want the program exposed in detail in the effort to discredit the administration.

    Dubya (c16726)

  31. Domestic vs. international is a BS semantic distinction. The communication is indeed “inter-national” but the surveillance includes within its scope a domestic party, and it is that domestic party whose rights are at issue.

    The Fourth Amendment is not waived by a citizen communicating with a party outside of the U.S.

    Again, Bush lied at every turn about the existence of this program, about whether it was subject to judicial oversight, and about whether it was essential to security. You can dismiss that as irrelevant. I see it as a primary argument for why the executive branch cannot and should not police its own adherence to constitutional limits. Common sense.

    biwah (2dcf66)

  32. The Fourth Amendment is not waived by a citizen communicating with a party outside of the U.S.

    It is only the critics who claim without proof that it was exclusively or even predominately US citizens who were on the US end of the communication.

    Common sense precludes disclosing national intelligence secrets. The NY Times exposed this program simply cripple Bush. The Democrats on the Intelligence Committee (including Feinstein and Rockefeller) were fully briefed about the program but only became critical of it once the Times blew it.

    Dubya (c16726)

  33. Your tantrum does nothing to advance your primary argument. My points from #31 stand, and I would broaden them in that noncitizens stateside have the same Fourth Amendment protections (though certain FISA-related statutes have made distinctions).

    biwah (2dcf66)

  34. biwah, aphrael and other gloaters:

    My argument here is a tantrum only in the sense that I am adamant about not restricting the power of ANY President, Republican or Democrat, to do what needs doing to protect the US and its interests.

    Fourth ammentment arguments apply to evidence collected for purposes of a prosecution in a US criminal court. It does NOT apply to intelligence collection. The failure to make this distinction is the only thing that keeps alive the meme that the NSA’s activities are unconstitutional. If that were the case the NSA would have been shut down quickly after it was created in 1947.

    Bush should never have backed off and I agree that doing so hurt his credibility. The credibility hurt, however, is not the credibility of his argument, rather his credibility on doing all that is within his power to find and defeat terrorists and other enemies of the US (both foreign and domestic).

    The FISA appeals court stated in 2002 that the President has “inherent authority to conduct warrantless searches to obtain foreign intelligence informaton.”

    Dubya (c16726)

  35. Here’s another example of people with an agenda spinning facts to infer criminality:

    The Supreme Court has ruled that transactions involving a third party are not afforded a “reasonable expectation of privacy.” Lets apply that ruling to another media-led Bush-bashing “scandal” involving “warrantless wiretapping/domestic spying,” namely the USA Today story about the FBI requesting phone call records from telephone service providers.

    Say Jane wants to call John. She dials John’s number on her phone. Her service provider (say Verizon) is a third party in this transaction. Verizon records certain facts about that call: Jane’s phone number, John’s phone number, date, time, duration of call, and likely other routing and infrastructure-related information. Verizon creates these records for billing purposes and for purposes related to optimization of their service offerings and equipement infrastructure.

    Certain people have claimed that Verizon’s record of a call is the caller’s private information. Obviously that is not the case, as the record is Verizon’s not Jane or John’s. The callers also have no reasonable expectation of privacy related to the occurence of their calls, as all calls involve third parties (one or more service providers) in the transaction.

    Notice that Verizon’s records are facts about the call and not the call contents. Claiming that requesting those records is “warrantless wiretapping’ is total spin because the conversation itself is not recorded (tapped), nor is the FBI requesting that the conversations be recorded or supplied to them.

    If anybody has a leg to stand on in demanding a warrant before the FBI can obtain call records, it is Verizon, not Jane or John. In that case Verizon’s concern would likely be related to the possibility that the information would become public and thereby provide information about the efficiency and productivity of their operations to their competitors, not any Fourth Ammendment right of their customers.

    You know, if the NSA issue had come up in the Clinton administration, you can bet the NY Times would have honored his request to not publish the story. Clinton was “golden” in the eyes of Bill Keller and the other Bush-hating terrorist-enablers at the Times. They only published this story to make things difficult for Bush.

    Dubya (c16726)

  36. “noncitizens stateside have the same Fourth Amendment protections”

    No question. And they have the same Fourth Amendment protection that citizens do when crossing the border of the United States. None. No lawyer worthy of the title insists that this was a Fourth Amendment issue, despite Anna Diggs Taylor’s nonsense. It was a purely statutory question under FISA.

    nk (d5dd10)

  37. In January of 2004, I spent two weeks in Turkey, and one of the things that I let myself get roped into is going up into someone’s hole-in-the-wall carpet shop for tea.

    That is an inherently public act and therefore you have no expectation of privacy regarding its occurrence. If there were al-Qaeda types in the shop, you can naturally expect that you would attract some attention from the intelligence community to ascertain whether or not your proximity to terrorists was intentional and sinister or accidental and innocent.

    It’s very unlikely that the executive would get involved in deciding whether or not to give you a “sniff test.” The decider in that case would likely be the intelligence asset who noted your proximity to the terrorist. Do you want every “sniff test” to require a warrant and do you want such warrants for events that take place in Turkey?

    Get serious.

    Dubya (c16726)

  38. I am adamant about not restricting the power of ANY President, Republican or Democrat, to do what needs doing to protect the US and its interests.

    But no one has stated a credible, straightforward reason as to how FISA warrant process inhibits this, especially considering that Congress was asking to be permitted to amend FISA to the administration’s requirements – a request that was essentially rebuffed.

    biwah (2dcf66)

  39. Also, it is only gloating because of the lack of that explanation up to now, and the blatantly disingenuous backpedaling over the years. Had it been otherwise, this issue could have been a win-win-win.

    Absent that, no gloating over the administrative decision to (apparently) renounce (some of) its “unitary executive” claims.

    biwah (2dcf66)

  40. But no one has stated a credible, straightforward reason as to how FISA warrant process inhibits this, especially considering that Congress was asking to be permitted to amend FISA to the administration’s requirements – a request that was essentially rebuffed.

    The request was rebuffed because the FISA court itself said that the warrants weren’t required in the first place. See the last sentence in the same comment you quote, biwah.

    Dubya (c16726)

  41. Dubya (re #35): I’ve been trying not to gloat, actually. I’ve merely noted that this is what I wanted the Presiednt to be doing all along.

    I think that, if the government is going to snoop on me for any reason whatsoever, it must have a legitimate reason to do so, and be willing to defend that reason before an independant review. Without that review, it is far too easy for the power to be abused; and, given that anything relating to that abuse would be classified, extremely difficult for the abuse to ever be proven and stopped.

    I maintain this not because I dislike President Bush, but because I have an old-fashioned Whiggish suspicion of executive power.

    re #36: you have a point regarding third party data. However, were I to have a contract with my phone provider indicating that that information could only be used for specific purposes, and were the call records turned over to the FBI in violation of that contract, I would have a legitimate complaint. So why has the market not evolved such contracts?

    re #37: you are correct that the intelligence asset would make the decision. But I would expect that if that decision rose to the level of wiretapping my phones, there would be some sort of independent review of the reasonableness of that decision. Why does that indicate that i’m not serious?

    aphrael (e0cdc9)

  42. See the last sentence in the same comment you quote

    Not sure which sentence you refer to. But if you could link the FISA court’s statement that the warrants weren’t required I would appreciate it.

    biwah (2dcf66)

  43. I don’t have a link, I saw the quote in a couple of articles at the time of the Times story and in an WSJ editorial this morning. Instead of attacking me for that, consider this.

    The reason the administration rebuffed Congress’ passing legislation to make what the administration was doing “legal” is because it would be bowing to the arrogation of Congress in “granting power” to the executive that the executive was already entitled to by Article II. (i.e. Congress claiming it had the power to grant power to the executive)

    This whole FISA mess came as a result of the Church Committee hearings in the 70s that also arrogated power from the executive to the judicial.

    Dubya (c16726)


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